Metcalf, 111, 1842.) The attempt had been made to hold certain men guilty of conspiracy because the members of a union or society had agreed not to work for any person who employed others not members of such union. The learned judge held (p. 128): "The averment is this—that the defendants and others formed themselves into a society, and agreed not to work for any person who should employ any journeyman or other person not a member of such society after notice given him to discharge such workman. . . . (p. 130) The case supposes that these persons are not bound by contract, but free to work for whom they please, or not to work if they so prefer. In this state of things we can not perceive that it is criminal for men to agree together to exercise their acknowledged rights in such a manner as best to subserve their own interests."
The right of the workman to free contract is fully sustained by this decision; he is left as free to refuse to work as he is free to work upon any terms that he may choose to work.
But when the attempt of a slave-master to control the service of him who had been held a slave in another State was made, Chief-Justice Shaw maintained the right of personal liberty in terms which no Congress, no Legislature, and no court would now dare to contravene.[1]
When Legislatures and trades-unions attempt to impair the personal liberty of men, and to take from them the right to control their own time, the act differs only from the claim of the slaveholder in degree but not in kind; and when an appeal is taken to the courts, the great judge may again annul the act or the ordinance, citing in support of his decision Chief-Justice Parsons, who declared that no slave could breathe the air of Massachusetts; and Chief-Justice Shaw, who ruled that no man should even attempt to impair the personal liberty of him who dwelt upon our soil, even were it only for a single day.
In the case of the People vs. Gilson, adjudicated in New York in 1888 (New York Reports, vol. 109, p. 389), Justice Peckham gave a broad and lucid construction to the term "liberty" in the following words (p. 398): "The term 'liberty,' as used in the Constitution, is not dwarfed into mere freedom from physical restraint of the person of the citizen, as by incarceration, but it is deemed to embrace the right of man to be free in the enjoyment of his faculties with which he has been endowed by the Creator, subject only to such restraints as are necessary for the common welfare. Liberty in its broad sense, as understood in this country, means not only the right of freedom from servitude, imprisonment, or restraint, but the right of one to use his faculties
- ↑ Commonwealth vs. Aves, 18 Pick., 193 (1836).
