Page:Harvard Law Review Volume 4.djvu/405

389 MEANING OF THE TERM ''LIBERTY:' 389 means the right, not only of freedom from actual servitude, imprison- ment, or restraint, but the right of one to use his faculties in all lawful ways,, to live and work where he will, to earn his livelihood in any lawful calling, and to pursue any lawful trade or occupation. All laws, therefore, which impair or trammel these rights, which limit one in his choice of a trade or profession, or confine him to work or live in a specified locality, or exclude him from his own house, or restrain his otherwise lawful movements (except as such laws may be passed under the police power), are infringements upon his fundamental rights of liberty, which are under constitutional protection. It is not clear whether the court had in mind the clause in the New York Constitution, protecting all rights, or that protecting simply life, liberty, and property. The defendant cited both clauses. Probably the court did not distinguish them. People V. Marx, 99 N. Y. 377 (1885), is a similar case. Here a law prohibiting the manufacture and sale of oleomargarine was held void, as violating the clause protecting life, liberty, and property, and also that protecting any of the rights of a citizen of the State. The court says that it is now settled that " it is one of the fundamental rights and privileges of every American citizen to adopt and follow such lawful industrial pursuit, not injurious to the community, as he may see fit," and then repeats the statements in the other New York cases that the term " liberty " includes the right to be free in the enjoyment of all the faculties with which one has been endowed by his Creator. People V, Gillson, 109 N. Y. 399 (1888), was decided on the same ground. A statute made it a misdemeanor for any person who sold food to give away therewith, as a part of the transaction of sale, any other thing as a premium, gift, etc. The court held the act void as infringing liberty and property, and said : — The defendant here appeals for his protection to the clause in the constitution which provides that no person shall be deprived of his hfe, liberty, or property, without due process of law. The meaning of this provision in our State constitution has frequently been the subject of judicial investigation, and this court has had occasion very recently to discuss it. The following propositions are firmly established and recognized: A person living under our constitution has the right to adopt and follow such lawful industrial pursuits, not injurious to the community, as he may see fit. The term "liberty," as used in the con- stitution, is not dwarfed into mere freedom frcm physical restraint of