William M. Lacy James Kent.

Commentaries on American law, Volume 2 online

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Wash V. Medley, 5-22

Washburn v. Pioot, 474

Watchman (Brig), Case of, . . . 407

Waters v. McClellan 523

V, Taylor, -045

Wathey v. McDougal, 596

Watkinsr. Baird, . 453

V. Birch, 519

Watkinson v. Laughton, .... 600

Watson V. Bailey, 152

V. King, 646

V. Orr ^ 458

V. Williams, 531

Watson, Miss, Case of, 170

Watts V. Crooke, 424

Weall V, King, 479

Webb V. Plummer, 556

Webster v. Maasey. 462

V. Woodford, 451

Weeks v. Wood, 525

Weld V. Hadley, 509

Weller v. Baker, 131

Wellesleyr. DukeofB., . .205,220

P. Wellesley, 221

Wells V, ttorton, 510

V. Parker, 391

V. Tucker, 444, 447

V, Williams, ....... 63

Welsh r. Carter, . . ... 479

r. Hayden, 523

Wendell r. Van Rensselaer, . . . 483

Wennall v. Adney, 265

West V. West, 171

Westbrook v, McMillan, .... 474

Westcott V, Cady, 353

West Cambridge v. Lexington, 93
Westmeath v. Westmeath, . 176, 467
Westmoreland v. Dixon, .... 478

Weston V. Barker, 533

V. Downey, 480

West Syndic v. McConnell, ... 124

Wever v. Baltzell, 403

Wheaton v. East, 2:^6, 238

V, Peters, 374, 377

Wheeler v, McFarland, 639

V. Train, 529

Wheelockt; Wheelwright, .574,586
Wheelwright v. De Peyster, . . 324

Wheldale v. Partridge, 230

Whetherbee v. Foster, 344


Whipple t'. Dow, • 191

WTiiston V. Stodder, 459

Whitaker, Matter of, ... . 226,229

r. Sumner, 579

tJ. Whitaker, .... 135

Whitall fj. Clarke, 171

Whitchurch, ex parte 404

White, ex pnrte, 404

V. Canfield, 462

f>. Gerock, 380

V, Gifford, 645

r. Hall, 463

r. Osbom, 350

r. Proctor 540

V. Skinner, 631

r. White, 287, 463

V. WilkS, 496

V. Wilson, 451

Whitehouse v, IProst, 547

Whitesides v. Dorris 139

Whitfield V. Lord Le Despence, . 600

r. Mcleod, 480

Whithead r. Tuckett, 614

r. Yaughan, 641

Whiting r. Braston, 346

r. Eari, 194

Whitney r. Dutch, 234

r. Emmett, .... 369, 371

r. Lewis, 472

Whittermore t*. Adams, 462

I?. Cutter, 367, 369, 371,


Whittington v, Whiltington, 100, 101

Whittlesey r. Fuller, 132

Whitwell V. Vincent, 498

Widgery r. Haskell, 533

Wier^sCase 119

Wigg V, Shuttleworth 468

Wightman v, Wightman, . . . 76, 63

Wilcocks, ex parte^ 293

Wilde r. Jenkins, 312

Wildman v. Wildman, 135

Wilkes & F. v. Ferris, 600

Wilkes u. Back, 631

Wilkins v. Aiken, 382

Wilkinson v. King, 324,620

V. Leland, 340

William, Tbe, 562

Williams, Case of, 411

Isaac, Case of , . . . . 47
V. Barton, .... 480, 628

V. Carter, 487

V. Jones, 463

V. Millington, .... 536

r. Mitchell 605

V. Schr. St. Stephens, . 582

Williamson v. Bowie, 403

r. Gordon, 245

V. Parisien, ... 80, 100


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[The paglDg refers

Williamson f.Smoot. 285

p. Watts, 235

r. Williamson, ... 101

^JUngr. Consequa, 478

^!"yard V. Hamilton 339

wilmot'8 Caae, . . ; 154

wUaoii,Ca8e of, 405

«. Dickson, 6U6

r. Knepple, 534

r.Marryat, 49

r. Reed, 350

t.Smith 403

r. Spackleford, 478

^ t. Wilson, 99, 164

Wilt p. Franklin, 532

^ P.Welsh, 241

^^ntryt. Cottle, 488

Wiltshire f. Sims, 622

r, Wiltshire 86

Winchelsea (Earl of) v. Norcliffe, 230
Winchendon v. Hatfield, .... 252
Winchester ( Bishop of) r. Beaver, 245

Wing f. Mills, 465

Wiae p. Wilcox 489

Wiaeman v. Vandeput, 542

Withers 1-. Lyss, . . . .468,496,546

tJ. Pinchard, 169

W'itherspoon v. Dubose, . . . 144

^^ithington c. Corey, 336

Withnell V. Gartham, 633

Witnum v. Lex, 288

Wolfep. Lnyster, 539

*^<HHl t. Ash 361

p. Malin, 462

V. Roach, 542

V. Van Arsdale, 524

r. Wood 100, 220, 414

Ijr^ V. Zimmer, 369

\V?^bridge v. Wright, 462

" ^K>afiock V. Parker, . . 367, 369, 371
V(c>o4end V. Paulspurry, .... 431
v^ooderman v. Baldock, .... 520

^oodhull V. Wagner, 393

^^oodleife v. Curtis, 598

Woodman v. Chapman, 145

Woodme«tou v. Walker, . . 165, 170

Woodsv. Hall, 539

v.M'Gee, 490

to the [•) pages.]

Woods V. Russell, 504

Woodward v. Dowsing, 16

V. Lander, . , . . . 22
Woolstonecraft, Matter of, . 194,205

Woolwrich t\ Forrest, 292

Wortlell r. Smith 518

Wordsworth r. Willan, 601

Worrell t;. Jacob, 176*

Worseley r. Demattos 517

W^orthington v. Young, 1C7

Wotton ». Hele, 167

Wright V. Bell, 488

V, Bird, 391

V. Campbell, 549

V. Hart, 480

V. Lawes, ....... 545

r. Moore, ....... 465

V. Sarmuda, 435

V. Snell, 638

r. Steele, 236

r. Wilcox, 260

V. Wright, . . . 216, 231, 447

Wrinkle v. Tyler, 47^

Wyatt V. Barnard, 381

Wyckoflf V, Boggs, 91

Wyman «. Winslow, 508

Wynn r. Hiday, 474

Wynne v. Jackson, 459

V. Thomas, 646

Yarborough v. Bank of E., . 284, 289

Yates V. Boen, 451

V. Lansing, 30

& Mclntyre v, Curtis, ... 400

Yeaton v. Fry, 121

Yoker. Bamet, 141

York V, Grenaugh, 634

Young's Case, 338

Zacharie v. Nash, 630

Zagury r. Furnell, 496

Zouch V. Parsons, . . . 234, 236, 237



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The rights of persons in priyate life are either absolute, being
such as belong to individuals in a single, unconnected state; or
relative, being those which arise from the civil and domestic re>

The absolute rights of individuals may be resolved into the
right of personal security, the right of personal liberty, and the
right to acquire and enjoy property.* These rights have been
justly considered, and frequently declared, by the people of this
country, to be natural, inherent, and unalienable.' The effectual
security and enjoyment of them depend upon the existence of
civil liberty ; and that consists in being protected and governed
by laws made, or assented to, by the representatives of the people,
and conducive to the general welfare. Eight itself in civil
society, is that which any man is entitled to have, or to do, or to
require from others, within the limits prescribed by law.' The

' Blackstone in hia commentaries thus sums up the absolute rif^hls of man :
"The absolute rights of man considered as a free agent, endowed with dis-
cernment to know good from evil, and with power of choosing those measures
which appear to him to be most desirable are nsually summed up in one
^neral appellation, and denominated the natural liberty of mankind. 2
Corns, p. 125.

» The natural rights of persons are such as relate to life and liberty. The
inherent rights are such as a person possesses without receiving them, or the
ability or faculty of doing them, from another. And the unalienable rights
such as are incapable of being sold, as the natural rights of life and liberty.
Wharton's Law Lexicon: Bouvier I^w Dictionary.

• The word right is used to denote a straight line and moral rectitude of con-
duct. In its primitive sense, that which the law directs ; in its popular ac-
ceptation that which is so directed for the protection and advantage of an
individual is said to be his right. Wharton L. Lex. A well founded claim.
Bouvier L. Diet, where the different kinds of rights are set out at length.



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history of our colonial governmeDts bears constant marks of the
vigilance of a free and intelligent people, who understood the
best secorities for political happiness, and the trup foundation of
the social ties. The inhabitants of tho colonies of Plymouth and
Massachusetts, in the infancy of their establishments, declared

by law that the free enjoymeat of the liberties
[ * 2 ] *which humanity, civility, and Christianity called for,

was due to every man in his place and proportion, and
ever had been, and ever would be, the tranquillity and stability
of the commonwealth. They insisted that they brought with
them into this country the privileges of English freemen -,* and
they defined and declared those privileges with a caution,
sagacity, and precision, that have not been surpassed by their de-
scendants. Those rights were afterwards, in the year 1602, on
the receipt of their new charter, re-asserted and declared. It
was their fundamental doctrine, that no tax, aid or imposition what-
ever, could rightfully be assessed or levied upon them, without
the act and consent of their own legislature ; and that justice
ought to be equally, impartially, freely, and promptly adminis-
tered. The right of trial by jury, and the necessity of due proof
preceding conviction, were claimed as undeniable rights; and it
was further expressly ordained, that no person should suffer
without express law, either in life, limb, liberty, good name, or
estate^ nor without being first brought to answer by due course
and process of law (a).

(a) Hazard's State Papers,, vol. i. p. 408, 487, edit. Philacl. 1792. Hutchin-
san's Hist, of Masaachusetis, vol. ii. p. 64. Revised Laws of Massachusetts^
published in 1675. Baylie's Historical Memior, vol. i. p. 229. Bancrofts
Hist. vol. i. p. 452. It was a provision in the charters to the Virginia set-
tlers granted by James I., in 1606 and 1609 ; and in the charter to the
colonists of Massachusetts in 1629 ; of the province of Maine in 1639 ; of
Connecticut in 1662; of Rhode Island in 166.'J ; of Maryland in 1632 ; of
Carolina in 1663 ; and of Georgia in 1732, that they and theirposterity should
enjoy the same rights and liberties which Englishmen were entitled to at
home. Such privileges were implied by law without any express reserva-
tion. The like civil and religious privileges were conceded to New Jersey
by the proprietaries in February. 1665. Bancroft's Hist.^ vol. ii. 316. In the
free and liberal charter of Massachusetts of 1629, powers were granted to the
whole body of the proprietors to make laws not repncjnant to the laws of
England. The colonists of New Plymouth assumed the necessary powers of
government by an original compact among themselves, and which they sub-
scribed before they lauded on the rock at Plymouth. All the New England
colonies, on their first establishment, were pure democracies : none more so
ever existed. The governments of Rhode Island, Connecticut and New

* An uninhabited country newly found out and inhabited by the English
is to be governed by the laws of England. 2 P. Wms. 75 ; 6 Cowp. 205.



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O* Ihe first act of the general assembly of the colony of [ *3 ]
'^^/^^ecticut, in 1639, contained a declaration of rights in
^ r^V the same language (a); and among the early resolutions
•^^^e general assembly of the colony of New York, in 1691 and

V^, we meet with similar proofs of an enlightened sense of the
^Yisions requisite for civil security. It was declared by them (6),

HaTen, were thus Ibrmed by voluntary compact. Under the first Massachu-
setts charter, the legislative body vas composed of the governor, assistants,
and the whole freemen of the company in person. The first general court of
delegates was in 1634. The freemen had become too numerous to assemble
in a body, and Grovemor Winthrop directed that the towns should assemble
in general court by deputies, to revise and make laws. The statute cf 16M6
declared that the freemen of each town might choose, by papers, deputies to
the general court. This was intjDducing voting by ballot. See Digest of
^amcJmsetts Colony LawSy published in 1675. The" freemen cf the colonies
of Plymouth and Rhode Island, at first assembled in person, and made laws.
. ^'Mrop^s Hist, of New England by Savage^ vol. i. p. 128. For more than
eighteen years, the whole body of the male inhabitants of the old colony cf
l*lymouth constituted the legislature. Bancrofts Hist.y vol. i. p. 348. In
1636 the election of the governor and assistants by the freemen was declared
to be annual, and in 1638 the personal attendance of the freemen at the gen-
eral court was deemed to be grievous, and each town was thenceforward to
choose deputies. Brigham's edit, of Plymouth Colony Laws, 1836, p. 36, C7.
y- And hy statute in 1671, ibid. p. 258, if any freeman did not appear ct
fteetian tn person, or by proxy , he icas for such neglect to be amerced. The free
j^anters of Connecticut, in 1639, provided that the choice of officers was to
^ oy ballot, and that if the general assembly or court was not at any time
^^b' convened, the freemen might meet and hold the same in person or by
J P^ty. Chalmersays, that the introduction of representative government
1 -Massachusetts was in violation of the charter of 1629. and this was the
P'nion of Sir George Treby, and other high legal authority in England.
^ though there was no express provision for it in the charter, it would
*^^ t-> have been necessarily implied when the growth of the colony
JJ^I^Jired it; and it was justified by the model of the English house of
-^iJiotia, where the principal of representation was inherent and vital. The
^* ^^asembly of Maryland, in 1635, consisted of the whole body of the frcc-

,^» and in 1639, a representative assembly was established.
rj^f T'rumbulVs Hist, of Connecticut, vol i. p. 98. Laws of Connecticut, edit.
r^^<>n, 1672, edit. 170:2, and edit. New Ix)ndon, 1715, by Timothy Green.
P^^^lition of 17021 have not seen. The edition of 1672 was the first
lat^i^ code. There was a code of laws compiled in 1650, and it was ciron-

/V* ^n fcritien copies read in each town.
^ ) Journals of the Assembly of the Colony cf Kew York, vol. i. p. 6, ^24.
^f ^^^^neral assembly of the colony of New York passed an act on the 13th
^^^^*y, 1691, declarat4iry of the rights and privileges of the people ot the col-
~ " It was declared that a session of the general assembly should be held
# ^^^^7. an<l that every freeholder within the province, and every freeman
e^^^iTWTation, were entitled to vote for members of the assembly; that no
^^^'^^^Ti was to be deprived of any rights or liljertios, or condemned, but by
'^t^iXidgment of his peers, or the law of the land; that no tax of any kind,
^ oO »°y pretence, should be levied upon the persons or estates of any of the
^^ujects of the province, except by the act of the general assembly; that all
jfialsMrere to be by a jury of twelve men, and in all capital and criminal
dwesthtre was to be a previous indictment or presentment by a grand in-
quest; and that the tenure of all lands was to be in free and common socage.
This declaratory act, or charter of privileges, contained several oth^r provi-



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that the imprisonment of subjects without due commitment for
legal cause, and proscribing and forcing them into banishment,
and forcibly seizing their property, were illegal and arbitrary acts.
It was held to be the unquestionable right of every freeman, to
have a perfect and' entire property in his goods and estate; and
that no money could be imposed or leTied,^ without the consent
of the general assembly. The erection of any court of judicature
without the like consent, and exactions upon the administration
of justice, were declared to be grievances. Testimonies of the
same honourable character are doubtless to be met with in the

records of other colony legislatures. It was. regarded
[ *4 ] * and claimed by the general assemblies in all the colonies

as a branch of their sacred and indefeasible rights, that
the exclusive power of taxation of the people of the colonies re-
sided in their colonial legislatures, where representation of tbem
only existed; and that the people were entitled to be secure in
their persons, property, and privileges, and that they could not
lawfully be disturbed or aflTected in the enjoyment of either,, with-
out due process of law, and the judgment of their peers (a). But

sions, but it was repealed by the king in 1697. Bradford's edition of Colony
Laws, 1719. There Tvas a prior act of the same purport, and nearly in the
same words, passed by the first genenil assembly of the province in 1683,
under the administration of the Duke of York. It was styled *' The charter
of liberties and privileges, granted by his royal highness to the inhabitants
of New York.'* App. No. 2, to the retised edition of the Laws of New Y'ork
in 1813, vol. ii.

(a) See to this effect, in addition to thejicts of Massachusetts, Connecticut,
and New York, already mentioned, the declaratory act of the assembly of
the Plymouth colony in 1635, and also in 16.'j8, and in 1671. (Holine'B
Annals^ vol. 1. p. 232. Baylie's Historical Memoir of the Colony of Ncto Ply-
mouth, vol. 1. p. 229. Plymouth Colony Laws, edit, by Brigham, 1836, pp. 107,
241.) See also the declaration of their rights, by the assembly ol Virginia'
in 1624 and 1676; (Stith'sHUi. of Virginia, p. 31^. Chalmer's Annals, p. 64;)
and of the assembly of Pennsylvania in 1682; and of the legislature of
Maryland in 1639, and ag^in in 1650; and of the assembly of Rhode Island
in 1663; and of the proprietaries of Carolina in 1667; (Proud' s Pennsylvania,
vol. i. p. 206, 208. Graham's Hist, of the Colonies;) and of the concessions
and agreements of the proprietaries of New Jersey in 1664; and of the fun-
damental constitutions by the proprietaries of East New Jersey in 1683 v and
of the declaratory acts of the general assembly ot East New Jersey in 1682 and
1698; and oi the concessions and agreements of the proprietaries and plant-
ers of West New Jersey, and called the great charter of fundamentals, in
16*76; and of the declaratory act of the general assembly of West Jersey
in 1681. (Learning's and Spicer's Collections, edit. Philad. folio, 1757, pp
12—26, 153— 166, '235, 240, 370, 372, 382, 411, Smith's Hvd. of New Jersry'
128, 270—4, app. No. 1, 2.) The West New .Jersey colonists, in 1676, inti^l
duced voting by ballot, universal suffrage, the right and obligation of in-
structions, universal eligibility to office, and abolished imprisonment for
debt All this was done under the auspices of William Penn, whose influ-
ence contributed to plant West New Jersey, and who was a joint assignee



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we need not parsae onr researches on this point, for the best
eWdence that can be produced of the deep and universal sense of
^6 value of our natural rights, and of the energy of the princi-
ples of the common law, are the memorials of the spirit
wLich pervaded and animated every part of our * country, [ * 5 }
after the peace of 1763, when the same parent power which
bad nourished and protected us, attempted to abridge our im-
maaiiies, and retard the progress of our rising greatness.

T^e house of representatives in Massachusetts, the house of
assembly in New York, and the hbuse of burgesses in Virginia,
took an early and distinguished part, upon the first promulgation
of English measures of taxation, in the assertion of their rights
asfreeborn English subjects (a). The claim to common law
^gl^ta soon became a topic of universal concern and national vin-
dication. In October, 1765, a convention of delegates from nine

jnd traRtee of an undivided portion of West Jersey, as well as a joint owner
"y purchase with other partners of East Jersey. The declaration of the gen-
eral asRembly of Virginia in 1624, that the governor should not lay. levy,
or emp^^jy gjjy taxes or impositions upon the colony, except by the auth-
onty of the general assembly, was the first colonial example of the asser-
tion of such a right; as that house was the first popular representative body
wer convened in America. Hening^ s Statutes, vol. i. p. 118, 12*2. Story* s Com,
'^^^ Chnst., vol. i. p. 26. The charter of the colony of Maryland, in 1632, was
P^nliju-iy liberal. It established an independent colonial legislation in the
Proprietary and the freemen or their deputies, and the crown stipulated
nercp ^^ ^eyy any tax upon the inhabitants, and the inhabitants were to
^"^^y all the rights and privileges of English subjects. 1 Chalmers' An-
^- Pp. 202—205. 1 Hazard's Coll. p. 327. The first assembly of Maryland,
15*^38, declared the great charter of England to be the measure of their
''^rfiea; and William Penn, in the preface to the plan of government pre-
PJ*^<i for Pennsylvania, in 1682, declared, that any government is free to
p^I*^ople under it, where the laws rule, and the people are a party to those laws.
^?*f<^'« Hist, of Pennsylvania, vol. ii. app. p. 7. Bacon's Lairs, 1638, ch. 2.
»r '**) JkfinoVs Htsf. of Massachusetts^ vol. ii. p. 175. Journals of Assembly of
^Tf PbrJt, vol. ii. pp. 76&— 780. Jefferson's Kofes on Virginia, 189. dlar-
^2^^ i(/€ of Washington, vol. ii. p. 88, and appendix, note No. 4. Wirt's
fe of Patrick Henry, sect. 2. The assertion by the English house of com-
th***^^ in 1764, and prior to the stamp act, of a right to impose taxes upon
*^ polonies, produced spirited and manly remonstrances to the kfng and
^^fianaent from several of the colonial assemblies. Pitkin's Hist, of the
Xe '^*' 5itete8, vol. i. pp. 165 — 169. The general assembly of the colony of
^ ^ Vork, in October, 1764, not only asserted their exclusive right of tax-
^^K th^iT constituents, but complained, at the same time, of the grievance
jj^ ^^^tting an end, by act of parliament, to commercial intercourse between
gjj^^^^onies and foreign West India settlements. Journals of N. Y. ibid. The
^^ ?*P act was passed the 22d March, 1765, and this was the first measure
jQ^J^^^Ircct taxation laid upon the colonies by the British parliament for the
«eitoK .P°n>ose of revenue. The first resolutions of any cf the colonial as-
«^^2[?^ "^^ *^® IMWsage of the stamp act, carae from the house of bur-
and^^ of Viiiginia. They were introduced by Patrick Henry in May, 1765,
f^ **<^%rted the right in the colonists of taxing themselves. Wirt's Life of
^*^k Henry, sect, 2.



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colonies assembled at New York, and made and published a de-
claration of rights, in which they insisted that the people of the
colonies were entitled to all fche inherent rights and liberties of
English subjects, of which the most essential were, the exclusive
power to tax themselyes, and the privilege of trial by jury (a).
The sense of America was, however, more fully ascertained, and
more explicitly and solemnly promulgate, in the memorable de-
claration of rights of the first Continental Congress, in October,
1774, and which was a representation of all the colonies except

Georgia.'^ That declaration contained the assertion of
[ * 6 ] several great and fundamental principles of American *lib-

erty, and it constituted the basis of those subsequent bills
of rights, which, under various modifications, pervaded all our
constitutional charters. It was declared, " That the inhabitants
of the English colonies in North America, by the immutable laws
of nature, the principles of the English constitution, and their
several charters or compacts, were entitled to life, liberty, and
property; and that they had never ceded to any sovereign power
whatever, a right to dispose of either, without their consent;
that their ancestors, who first settled the colonies, were, at the
time of their emigration from the mother country, entitled to all
the rights, liberties, and immunities of free and natural bom
subjects: and by such emigration they by no means forfeited,
surrendered, or lost any of those rights; — that the foundation of
English liberty, and of all free government, was the right of the
people to participate in the legislative power, and they were en-
titled to a free and exclusive power of legislation, in all matters
of taxation and internal' policy, in their several provincial legis-
latures, where their right of representation could alone be pre-
served; — that the respective colonies were entitled to the common
law of England, and more especially to the great and inestim-
able privilege of being tried by their peers of the vicinage, ac-
cording to the course of that law; that they were entitled to the
benefit of such of the English statutes as existed at the time of
their colonization, and which they had by experience found to be
applicable to their several local and other circumstances; — that

(a) MarshaiVs Life of Washington, vol. ii. p. 90, and Appendix, Note No. 5.

^ The representatives who attended this first Congress styled themselves in
their formal acts "The Delegates appointed by the Good People of these Col-
onies." Pomeroy Const. Law, 35.



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tbej were likewise entitled to all the immunities and privileges

Online LibraryWilliam M. Lacy James KentCommentaries on American law, Volume 2 → online text (page 5 of 108)