Abbildungen der Seite
PDF
EPUB

are these: The place where one is born is his domicile, if it was the domicile of his parents; if not, their domicile is his during minority, unless changed by the parents. A married woman has the domicile of her husband. Residence is prima facie evidence of domicile; but no length of time is essential; and, therefore, if an adult person removes to a new residence, with the intention of remaining, it becomes his domicile immediately. Every person must have a domicile somewhere; and, therefore, when a domicile has once been acquired, it continues until a new one is acquired.

8 62. The Fundamental Rights in Rem-a. In General. There are three general rights in rem which are so universally recognized by free governments that they may be regarded as fundamental rights. They are: (1) The right of personal security; (2) the right of personal liberty; and (3) the right of private property. History has devoted many of its most interesting pages to an account of the struggle of peoples for the recognition of these fundamental rights. In England they are attested by a long line of constitutional documents, beginning with Magna Charta (1215), and often forced from arbitrary rulers at the point of the sword. In America they find expression in the constitution of the United States, and in the constitutions of the individual States." And it may be said that their existence is now recognized in the laws and traditions of all western civilized nations.

b. The Right of Personal Security. The right of personal security is the right of freedom from injury to life, limb, body, health, or reputation.

Human life is universally recognized as every man's natural right, unless he has so conducted himself that his existence is a menace to the community, when the state will sometimes deprive him of it. All other rights presuppose this one. Next to the safety of the state itself, the life of man is cherished by all free governments.

The limbs are those parts of the human frame which are useful in fight. The body includes all other parts. The limbs include the arms, legs, eyes, front teeth, and all parts, the deprivation of which would render one less able to defend himself. The distinction between the limbs and the body is not always clear. It would seem that there is no part of the frame, a serious injury

6. Walker Am. L. § 255.

Domicile may be divided into (1) domicile of origin, being that which every infant has upon attaining majority the domicile of his parents at that time; (2) domicile of choice, being that which the individual has

elected and chosen for himself to replace the domicile (whether of origin or of choice) previously obtained; or (3) domicile by operation of law, being that of a wife arising from marriage. See 14 Cyc. 837, 838.

7. See infra, § 63.

to which would not impair the individual's fighting power; but, where the part is such that an injury to it would affect this power only indirectly, it would not be classed as one of the limbs. An injury which involves a loss of limb is called a mayhem. When a person is threatened with an injury to life, limbs, or body, it is his right to defend himself. When his life or limbs are endangered, he may even go to the extent of taking the life of his assailant, when that is absolutely necessary for his own protection. But he is not justified in killing another when he apprehends an injury to his body only. And in any case, in order to justify any act of self-defense, there must have been reasonable ground to believe that personal violence was intended on the part of the aggressor.

The right of immunity from undue injuries to health is also an element of the right of personal security. Thus, the giving to another of impure or poisoned food is a violation of this right; and, when a person so uses his premises as to engender noxious or otherwise injurious odors, the general health of the neighborhood is endangered, and such use is in violation of the law.

Not only has every individual the right to be exempt from such injuries as affect him physically, as in the above cases, but he is also protected from unjust attacks upon his good name. When such attacks are made in writing, or through a printed newspaper or other periodical, or a printed book, the injury is called a libel. When they are committed by means of spoken words or by actions, it is denominated a slander. And, whether it take the form of libel or of slander, any unjust attack on a person's repu tation will be redressed by the courts.

c. The Right of Personal Liberty. The right of personal liberty is the right of an individual to act with freedom, except so far as he is restricted by the law. The word "liberty," as used by our revolutionary forefathers, included all of the fundamental rights those inalienable rights which are necessary to the pursuit of happiness. It is not infrequently used in this sense in the law. But, when the right of personal liberty is referred to, there is no intention of including the right to life or of property within the term. Writers on morals tell us that every man should have perfect freedom of movement, so far as his actions do not interfere with a like freedom on the part of his fellow-men. And this is the spirit of the law. But in this connection, as elsewhere, it is necessary to remember that moral rules are effective in the law only so far as the state has impressed upon them the character of legal rules. Instead, therefore, of the vague principle that one may act so far as he does not interfere with the right of another to do the same, we have the more definite rule

that one may act so far as he is not restricted by the law. Any violation of this right to act is a violation of the right of personal liberty, and is called a false imprisonment.

d. The Right of Private Property. The right of private property is the right of an individual to possess and own things unconnected with his person. This right of private property will be discussed in detail in a subsequent chapter.8

§ 63. Constitutional Guaranties of the Fundamental Rightsa. In England. In England the fundamental rights in rem are guaranteed in the constitution. The principal documents in which they are recognized are the Magna Charta, the Bill of Rights, the Petition of Right, and the Habeas Corpus Acts. Taken together, these documents are often said to be the basis of English liberty. Magna Charta is often pointed to as the beginning of the development of English liberties. It was forced from King John in 1215, on the plain of Runnymede. It contains sixty-three articles, and, with few exceptions, each article recognizes some distinct right. Articles 39 and 40 are the most celebrated and the most fundamental. They are as follows:

Art. 39. "No freeman shall be taken or imprisoned or disseized or outlawed or banished or any ways destroyed, nor will we pass upon him, nor will we send upon him unless by the lawful judgment of his peers, or by the law of the land.

Art. 40. "We will sell to no man, we will not deny or delay to any man, either justice or right."

These two articles Mr. Hallam calls the "essential clauses " of the Great Charter, being those which "protect the personal liberty and property of all freemen, by giving security from arbitrary imprisonment and arbitrary spoliation.'

[ocr errors]

The Bill of Rights and the Petition of Right are in a sense supplementary to the Magna Charta — passed, however, at a much later day. The Habeas Corpus Acts were designed to secure to the people the right of personal liberty. "On these," says Mr. Dicey, "rest an Englishman's security for the enjoyment of his personal freedom." The chief of these acts was passed in the reign of Charles II, and applies particularly to persons arrested on a charge of crime. A later act was passed in the reign of George III, and applies to all other cases of imprisonment. The two acts, taken together, form a guaranty that no person shall be kept in confinement an undue length of time, except by due process of law.

b. In the United States. In the United States various provisions exist in the federal constitution, the object of which is to guarantee the observance of the fundamental rights, and in the constitutions of most of the States there are what are called bills of 8. See infra, § 64 et seq.

rights, in which an attempt is made to state systematically the fundamental rights of man.

The most general statement of the fundamental rights is found in the Declaration of Independence. That document says: "We hold these truths to be self-evident, that all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty and the pursuit of happiness; and that to secure these rights governments are instituted among men deriving their just powers from the consent of the governed." In the constitution of the United States there is no such general statement, and the citizen is left to deduce from various disconnected clauses the charter of his rights. The fourteenth amendment, however, provides that no State shall "deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws." There are also clauses which guarantee freedom of religious belief, of speech, and of the press; the right of the people peaceably to assemble, and the right of petition to the government; the right to bear arms; the right to be secure from unreasonable searches; the right of trial by jury; and various other provisions regulating the conduct of trials for crime. The constitution further provides that the privilege of the writ of habeas corpus shall not be suspended, unless when, in case of rebellion or invasion, the public safety may require it; and that "neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States or any place subject to their jurisdiction."

In most of the State constitutions there is a more systematic attempt to define the rights of the people than is aimed at in the constitution of the United States; and the provisions designed for that purpose are usually collected together, and called the bill of rights. The danger of encroachment upon these fundamental rights is twofold: (1) That of encroachment by the governmental power; and (2) that of violation by private individuals. We have seen that the United States government has only such powers as are conferred upon it by the federal constitution, either expressly or by necessary implication. It is natural, therefore, that its authors should not regard it as so necessary to provide in that instrument for governmental encroachments upon private rights as it might be in formulating a constitution for a state which has all power of government unless restricted. Both the federal and State constitutions, however, contain ample guaranties against either public or private encroachment upon the fundamental rights of security, liberty, and property.10 9. See supra, § 40. 10. See 8 Cyc. 1080 et seq.

[blocks in formation]

72. Things not the Subject of Individual Ownership.

§ 64. Property in General. The subjects of law are either persons or things. A thing may be defined as any portion of matter or creation of the law which does not possess inherent legal rights. The word "property" is used in the law in two senses: (1) As synonymous with the word "thing"; and (2) as denoting the ownership of a thing, as distinguished from the mere naked possession.

In seeking the means for securing his highest welfare, man reaches out and takes hold of the objects of the material world. The supremacy of the human race over the lower animals and all inanimate matter is so universally recognized that it is embodied in all philosophies, all religions, and all systems of law. It is, therefore, a fundamental distinction which separates persons and things from each other — the one including those existences which are possessed of legal rights, that is, the ruling elements; the other, those which are merely the objects of personal control. Things, as such, have no legal rights. All rights in them are rights of persons. Not only does the class of things include inanimate objects and animals, but it comprehends also such intangible existences as rights themselves. To this entire class of objects technically called things, popular usage has given the name property," and this usage of the term is also common in the law. The same word, "property," is, however, used by legal writers to denote the permanent and stable ownership in a thing, as distinguished from its mere naked possession.2

66

$65. Historical Phases of Property. Property has, at different stages in the development of civilization, been held by men in three distinct ways, corresponding to three different types of social philosophy: (1) Anarchy; (2) communism or socialism; and (3) individualism.

1. See infra, § 69.

2. See infra, § 67.

« ZurückWeiter »