380 HARVARD LAW REVIEW. long before the eighteenth century, and when used could not have included the above rights because they did not exist at all, or were not deemed important. Such being the case, and the terms having taken on a fixed meaning, it is reasonable to suppose that the makers of our constitutions used them with that meaning, just as Blackstone did when he employed them to denote the three great absolute rights of individuals. In regard to such '* liberties " as those of petition and discus- sion, of trial by jury, of Habeas Corpus, of bearing arms for defence, of taking part in the government, and many others, im- portant as such rights are, they cannot be said to be fundamental in the sense that life, personal liberty, and property are fundamental rights. Strictly speaking, they are not substantial rights at all. As ends in themselves they are of no value. They are what Blackstone terms *' subordinate " rights. In other words, they are really the remedies or means which must often be employed in order fully to obtain and enjoy the real and substantial Hberties. If the term *' liberty " is held to mean civil liberty in its broad sense, all such rights must undoubtedly be included within it; but so must the rights of life and of property. It is only fair to assume that when the term was used by the framers of our consti- tutions, it was intended by them to have a definite meaning. As has been indicated, it had always had a definite meaning in the past. It is barely possible that they intended it to comprise all the hberties a person was to have under the form of government which they were about to establish. But if such was their inten- tion, why did they use the term in its ancient connection, with two other terms which had a historical meaning, but which, upon that theory, would be entirely superfluous and meaningless? If they intended it to mean civil liberty, and to include such rights as those of marriage, of education, and of employment, it would, of course, necessarily include the more fundamental rights of life and property, and the enumeration of the latter would be useless. If their intention was as supposed, it would surely have been more natural for them to have inserted a clause reading: "No person shall be deprived of any of his civil rights or liberties unless by due process of law." Such a clause was inserted in the constitution of New York, article i, section i of which provides that " no member of this State shall be disfran- chised or deprived of any of the rights or privileges secured to
