And sir Edward Coke observes, that the law judges in this respect like Festus the Roman governor,—that it is unreasonable to send a prisoner, and not to signify the crimes alleged against him.

The liberty of the subject is further secured by the law rendering it impossible that any man should be kept in prison upon a criminal charge, without trial, beyond a certain time. Thus it is enacted, by the famous habeas corpus act, 31 Car. II. c. ii., that every person committed for treason or felony shall, if he requires it, the first week of the next term, or the first day of the next session of oyer and terminer, be indicted in that term or session, or else be admitted to bail, unless the king's witnesses cannot be produced at the time; and if acquitted, or if not indicted and tried in the second term or session, he shall be discharged from his imprisonment for such imputed offence but that no person, after the assizes shall be opened for the county in which he is detained, shall be removed by habeas corpus till after the assizes are ended; but shall be left to the justice of the judges of assize. And it is also to be observed, that the justices of assize, by virtue of their commission of gaol-delivery, must try all the prisoners who are imprisoned in the county on any criminal charge, excepting in the cases above mentioned and specially pointed out in the act.

The same statute further provides, under severe penalties, that no inhabitant of England (except persons contracting, or convicts praying to be transported, or persons having committed some capital offence in the place to which they are sent to be tried), shall be sent prisoner to Scotland, Ireland, Jersey, Guernsey, or any places beyond seas, within or without the king's dominions.

Hallam remarks, that not only foreigners, but many from whom some knowledge of our constitutional law

might be expected, fall into the error of supposing that this statute of Charles II. enlarged in a great degree our liberties, and forms an epoch in their history. But though a very beneficial enactment, and eminently remedial in many cases of illegal imprisonment, it neither introduced a new principle, nor conferred any right on the subject. From the earliest records of English law, he adds, no freeman could be detained in prison, except upon a criminal charge, or conviction, or for a civil debt. In the former case it was always in his power to demand of the court of queen's bench the writ of habeas corpus, directed to the person detaining him in custody, by which the party was enjoined to bring up the prisoner with the warrant of commitment, that the court might judge of its sufficiency, and remand the party, admit him to bail, or discharge him, according to the nature of the case. This writ issued of right, and could not be refused by the court. It was not to bestow an immunity from arbitrary imprisonment, which is abundantly provided for in Magna Charta, if indeed it were not much more ancient, that the statute of habeas corpus was enacted, but to cut off the abuses by means of which the government's lust of power, and the servile subtilty of crown lawyers, had impaired so fundamental a privilege.1

Blackstone lays it down, that a natural and regular consequence of this personal liberty is, that every Englishman may claim a right to abide in his own country as long as he pleases; and not to be driven from it, unless by the sentence of the law. And he adds, that the law is in this respect so benignly and liberally construed for the

1 Hallam, Const. Hist. vol. iii.

2 As to the nature of the punishment of transportation, see Leonard Watson's (the Canadian prisoner) case, 9 Adolphus and Ellis, 731.

CC

benefit of the subject, that, though within the realm the king may command the attendance and service of all his liegemen, yet he cannot send any man out of the realm, even upon the public service, excepting soldiers and sailors, the nature of whose employment naturally implies an exception; he cannot even constitute a man lord deputy, or lieutenant of Ireland, against his will, nor make him a foreign ambassador. For, as Blackstone remarks, this might in reality be no more than an honourable exile.

III. The third primary inherent right of the citizen is that of property; which consists in the free use, enjoyment, and disposal of all that is his, without any control or diminution, save by the law of the land. The institution of property, that is to say, the appropriation to particular persons and uses of things which were given by God to all mankind, is of natural law. The reason of this is not difficult to discover; for the increase of mankind must soon have rendered community of goods exceedingly inconvenient, or impossible, consistently with the peace of society; and, indeed, by far the greatest number of things cannot be made fully subservient to the use of mankind in the most beneficial manner, unless they are governed by the laws of exclusive appropriation.2 As for the different modifications of the law of property, introduced by the municipal law of each state, they are in a great degree artificial, though they ought to be grounded on natural right and the welfare of the community. The laws of England are peculiarly watchful in

1 2 Inst. 47.

2 Grot Dr. de la G. et de la P. I. ii. c. ii. § 11. Pufen. Dr. de la N. et des Gens, 1. iv. c iv. And Barbeyrac's notes to Grotius, in which he shews that the law of property arises from natural law, and not from any compact.

maintaining the right of property, as they have moulded and declared it, especially against any infringement on the part of the crown. Thus the great charter has declared that no freeman shall be disseised or divested of his freehold, or of his liberties, or free customs, but by the judgment of his peers, or by the law of the land. And it is enacted, by a variety of ancient statutes,1 that no man's lands or goods shall be seised into the king's hands, against the great charter and the law of the land; and that no man shall be disinherited, nor put out of his franchises, or freehold, unless he be duly brought to answer, and be forejudged by course of law; and if any thing be done to the contrary, it shall be redressed, and holden for none.

But as the law of property is grounded on the welfare of mankind, and as the rights of property vested in individuals may in particular cases be incompatible with the interests of the community, there must in every commonwealth be a latent power to deal with such exceptions to the general law in such a manner as the public good may require. This is a part of what the civilians call dominium eminens, meaning thereby that it is a supreme or overruling right of property or dominion, inherent in the sovereign power of the state. By virtue of this supreme right of the state over the property within its jurisdiction, land and buildings belonging to private persons and of bodies are taken from them, for the purpose of erecting fortifications, making roads, railways, and canals, constructing bridges, docks, and ports, widening streets, and for a variety of purposes required by the public good. But this is a power which ought to be exercised with

1 Stat. 5 Ed. III. c. ix. 25 Ed. III. stat. 5, c. iv. 28 Ed. III. c. iii. 2 Grot. Dr. de la G. et de la P. 1. i. c. iii. § 6.

la Nat. et des G. 1. viii. c. v. § 7.

Pufendorf, Dr. de

great caution and moderation, and only in cases where the public advantage clearly and absolutely requires such an interference with property. Every man is bound to contribute towards the welfare of the community, whence he derives inestimable benefit; but the burden of the public service should be distributed among the members of the commonwealth with as much equality as possible. Hence a man who is called upon to give up a portion of his property for any particular purpose, beyond this contribution to which he is liable, in common with other citizens, for the support of the state, is entitled to receive compensation out of the public treasury, or from those who are benefited more directly by the work for which he makes such a sacrifice.'

In England, no power but that of the legislature can compel any man to part with his property, even for the most evident necessity of the commonwealth; and this is frequently done by giving the proprietor a full indemnification and equivalent for the injury sustained. The public is considered as an individual, treating with an individual for an exchange. All that the legislature does, is to oblige the owner to alienate his possessions for a reasonable price; and even this is an exertion of power which the legislature indulges with caution, and which nothing but the legislature can perform.

Another qualification to which the right of property is subject, is the right, vested in the sovereign power, to compel the citizens to contribute a portion of their substance, in the shape of taxes and impositions, to the common purposes of the state. Moderate and well-applied taxation is in the nature of a salary, which individuals pay to the state for the defence of their lives and proOn the whole of this subject see Bynkershoek, Quæstiones Jur. Pub. lib. ii. c. xv.,—Op. tom. ii. p. 266, &c.