Commentaries on American Law (1826-30)Chancellor James Kent Of the Absolute Rights of Persons
NOTES

     1.    Hazard's State Papers, vol. I. 408. 487, edit. Philad. 1791. Hutchinson's Hist. of Massachusetts, vol. ii, 64.
     2.    Trumbull's Hist. of Connecticut, vol. i, 98.
     3.    Journals of the Assembly of the Colony of New York, vol. 1. 6. 224.
     4.    Jefferson's Notes on Virginia, 189. Marshall's Life of Washington, vol. ii. 88, and Appendix, note No. 4.
     5.    Marshall's Life of Washington. vol. ii, 90, and Appendix, note No. 5.
     6.    Journals of Congress, vol. i. 26. edit. Phil. 1800.
     7.    The following instances may be mentioned, as illustrations of the questionable nature of some of these declaratory provisions:
       Thus, several of the state constitutions, as those of New. Hampshire, Massachusetts, Vermont, North Carolina, 0hio, Indiana, and Illinois, have made it an article in their bill of rights, that the people have a right, not only to apply to the legislature by petition, or remonstrance, but to "instruct their representatives." If, by this, be meant, that they may give to their representatives wholesome advice or information, it is a palpable truth, and quite a harmless article, but if it be intended to declare, that the people of a town, or county, or district, may give binding instructions to their immediate delegates, and to which they must conform without any exercise of their own discretion, in like manner as an agent or attorney in private business is bound by the directions of his principal, it would then render all discussion and deliberation in the legislature useless. This would be repugnant to the theory of government, which supposes that the representatives are to meet and consult together for the common welfare, and to have a regard, in the making of laws, to the greatest general good, and to make the local views and interest of a part of the community, subordinate to the general interest of the whole. The principle of the English common law applicable to the members of the British House of Commons, is deemed to be the true doctrine on this subject. Though chosen by a particular county or borough, the member, when elected and returned, serves for the whole realm. The end of his election is not particular, but general; not barely to advantage his constituents, but for the common weal; and he is not bound to take and follow the advice of his constituents upon any particular point, unless he thinks it proper or prudent so to do. (4 Inst. 14. 1 Blacks. Com. 159) The people cannot debate in their collective capacity. They can only deliberate and make laws by their representatives; and in the ordinary course of human affairs, the exercise of their sovereignty, and the means of their safety, will consist in the discreet selection of the rulers, who are to administer the government of their choice.
       So, it is declared, in some of the state constitutions, as Maryland, North Carolina, and Tennessee, that "monopolies are contrary to the genius of a free government, and ought not to be allowed." This would seem to restrain the legislature from granting any exclusive privilege even for a limited time, and prevent them from encouraging the introduction and prosecution of hazardous and expensive experiments in some art, science, or business, calculated to be extensively useful. "A temporary monopoly of that kind," says Doctor Adam Smith, (Inquiry into the Wealth of Nations, vol. ii. 272.) "may be vindicated upon the same principles upon which a like monopoly of a new machine is granted to its inventor, and that of a new book to its author." If the principle be correct, that all monopolies are contrary to the genius of a free state it would condemn the power given to Congress to secure to authors and inventors the exclusive right to their writings and discoveries, and which species of monopoly is deemed to be exceedingly just and useful. Again; it is made an article in the declaration of rights, in the constitution of Illinois, that "there shall be no other banks or moneyed institutions in the state, but those already provided by law, except a state bank and its branches." This is too general and too indefinite a restraint upon the exercise of legislative discretion, and the subject seems scarcely of sufficient importance to have been classed among the "general, great, and essential principles of liberty and free government." In a commercial state, it would lead to the loss of many useful moneyed establishments, or what is more probable, it would be a temptation to efforts to elude the force of the article by evasive constructions. So, the provision in the declaration of rights in the constitution of Mississippi, that "no citizen shall be prevented from emigrating on any pretense whatever," seems to be stated in terms too strong and unqualified, and it would require some latitude of interpretation to prevent the unjust application of the injunction to the case of persons emigrating with the fraudulent design of avoiding the payment of debt, or the discharge of a known duty, as the relief of bail or security. It is declared in the constitution of Ohio, that every association of persons, being regularly formed, and having given themselves a name, may, on application to the legislature be entitled to letters of incorporation to enable them to hold estates, real and personal, for the support of their schools, academies, colleges, universities, and other purposes." The provision is too indefinitely expressed, and relates to a case of ordinary legislative discretion, and if literally carried into execution, it would be productive of great inconvenience. It does not seem to be deserving of a place among "the essential principles of liberty and free government to be for ever unalterably established."
     8.    Constitution of 1777, art. 1. 13. 41.
     9.    Ch. 29.
   10.    2 Inst. 50.
   11.    De Jure Belli, b. 2. ch. 20.
   12.    Hawk. P. C. b. 1, c. 28. s. 21. Foster's Discourse of Homicide, 273, 274.
   13.    Hawk. ibid. s. 22, 23.
   14.    Potter's Greek Antiq, vol. i. 179. Halstead's Gentoo Code, 182. Cicero de Republica, lib. iv. Tacit. Ann. lib i, ch. 72. Hor. Epist. b ii, Ep. i. 152. Aul. Gel. b. iii. c. 3. Inst. 4. 4. 1. 3 Johnson's Cases, 362, note; where the reporter, with great learning and accuracy, has collected the material provisions in the Roman law on the subject. Since the publication of that note, the view of the law of defamation among the ancients has been extensively considered in Holt's Law of Libel, b. i, ch. 1.
   15.    Villers v. Monsley, 2 Wils. 403.
   16.    4 Mass. Rep. 168. 2 Pickering's Rep. 115.
   17.    1 Hawk. P. C. b. i, ch. 73.
   18.    2 Inst. 227.
   19.    Lib. 3. de Actionibus, ch. iv.
   20.    30 Ass. 29. Reeve's Hist. English Law, vol. iii. 90.
   21.    Statutes of 3 E. 1., 2 R. II., and 12 R. II.
   22.    2 Mod. 161, 165.  
   23.    4 Co. 110-112.
   24.    Dig. 47. 10. 18.
   25.    De Libellis famosis, 5 Co. 125. Hudson's Treatise on the Star Chamber, published in 2d vol. Collec. Jurid.
   26.    4 Barnw. & Ald. 95.
   27.    3 Johns. Cas. 337.
   28.    2 Rep. Const. Court, p. 809.
   29.    4 Mass. Rep. 163.
   30.    3 Pickering, 304.  
   31.    Territory v. Nugent, Christy's Dig. of Louisiana Decisions, tit. Ev. No. 161.
   32.    1 Binney, 601. Commonwealth v. Duane.
   33.    5 Johns. Rep. 508.
   34.    5 Barnw. & Ald. 642. Best, J.
   35.    Holt, Ch. J. 11 Mod. 99. Buller's N. P. 8. J'Anson v. Stuart, 1 Term, 748. In Massachusetts, a statute passed in March, 1827, not only allows the truth to be pleaded by way of justification in all actions for libels, as well as for oral slander, but every inference to be drawn from such a plea in admission of the fact of publication, or of malice, if the plea be not proved, is destroyed. The statute affords facility and encouragement to the plea.  
   36.    Vinnius in Inst. 4. 4. 1. Edinb. Review, vol. xxvii. p. 102. 142. Vol. xxxiii. 207,
   37.    We have a remarkable illustration of this principle, in a decision cited by Lord Coke, when at the bar, and arguing the cause of Brook v. Montague. (Cro. J. 91.) A preacher, in his sermon, recited a story out of Fox's Martyrology, of one Greenwood, as being a very wicked man, and a persecutor, who died under signal visitations of God's displeasure. The preacher intended to show, by that example, the judgment of Providence upon great sinners; but he was totally mistaken as to the fact, for Greenwood was not dead or diseased, but present at the preaching of the sermon. He brought his action for the defamation; and the court instructed the jury, that the defendant, having read and delivered the words as matter of history, and without any evil intention, was not liable in damages.
   38.    2 Inst. 589.  
   39.    4 Inst. 290.  
   40.    3 Bulst. 27.
   41.    See, for instance, the habeas corpus act, in Massachusetts, of 16th March, 1785, referred to in 2 Mass. Rep. 550; and the habeas corpus act of South Carolina, of 1712, and referred to in 2 Bay, 563. and 2 Const. Rep. 698.; and the habeas corpus act of Pennsylvania, of 18th February, 1785, and referred to in 1 Binney, 374.; and the habeas corpus act of New York, 1 R. Laws, 354.; and the habeas corpus act of New Jersey, referred to in 3 Halsted, 121.
   42.    See vol. i. 322.  
   43.    Constitutions of New York and New Jersey.
   44.    Pennsylvania and Virginia.
   45.    2 N. Hamp. Rep. 44. Marshall, Ch. J. in Livingston v. Jefferson, 4 Hall's L. J. 78.
   46.    Laws N.Y. vol. i. 352. edit. 1813.  
   47.    Yates v. Lansing, 5 Johns. Rep. 282.  
   48.    Sess. 41. ch. 277.
   49.    l Binney, 376.
   50.    4 Johns. Ch. Rep. 106.
   51.    4 Johns. Rep. 318.
   52.    5 Johns. Rep. 282. Yates v. Lansing. 6 Johns. Rep. 337. Yates v. The People.
   53.    Crosby's case, 3 Wils. 188. Burdett v. Abbott, 14 East, 1. Gist v. Bowman, 2 Bay, 182. Anderson v. Dunn, 6 Wheaton, 204.
   54.    1 Johns. Rep. 318.
   55.    The case of the King v. Jones, according to an English printed report of the case, was decided by Lord Ellenborough at chambers, on the 30th of November, 1816. The defendant had been convicted by two justices of a statute offense, and sentenced to three months imprisonment, and being brought up on habeas corpus, Abbott moved for his discharge on the ground of error in the conviction. Bolland in opposition to the motion, cited the case of Yates, in the Supreme Court of this state. His lordship took time to examine the case, and then declared, that the doctrine of it was strange and unprecedented, for that the decision of the judge in vacation, on habeas corpus, was binding, and could not be reviewed or reversed by the first committing authority, until it was brought up regularly by certiorari. This was the substance of the decision; and if it be admitted, that a judge at chambers has jurisdiction to review and reverse a commitment in execution, by the order or judgment of the Supreme Court or of the Court of Chancery, for a contempt, then, indeed, such decision, upon habeas corpus, would be binding until regularly brought up; but if he has no such power, (as the Supreme Court of New York adjudged,) then his act is irregular, null, and void, and the party so irregularly discharged by him is liable to recommitment by the first committing authority. The first committing authority in that case was none other than the Court of Chancery, holding its regular session, and awarding execution upon conviction in that case, and the power that prostrated the effect of that judgment and execution by discharging the party, was none other than a single officer acting summarily out of court. Which of these two decisions ought to be held valid, until regularly reviewed and reversed by the proper appellate jurisdiction, was the question in the Supreme Court in the case of Yates. The doctrine of the Supreme Court was, that a conviction in Chancery was not to be reviewed and reversed in that summary way. The doctrine of Lord Ellenborough appears to have been, that such a conviction (and of course a judgment of the Supreme Court) might be summarily reviewed and reversed as to the execution upon it, by a judge at chambers; while, on the other hand, his decision is obligatory every where, until brought up and reviewed in the regular course. This latter doctrine appears to be best entitled to the appellation of "strange and unprecedented,"
   56.    Laws N.Y. sess. 36. ch. 57. s. 10. Act of 1818. supra, s. 4, 5:
   57.    Constitutions of Vermont, Ohio, Illinois, and Mississippi.
   58.    Beames on the writ of Ne Exeat, p. 2.
   59.    Blacks. Ed. of Magna Carta of king John, art. 42.
   60.    Beame's Ne Exeat, ch. i.
   61.    Constitution of Vermont, Pennsylvania, Kentucky, Indiana, Mississippi, and Louisiana.