FREEDOM. The condition of one to whom the law attributes the single individu al right of personal liberty, limited only, in the domestic relations, by powers of control which are associated with duties of protec tion. See APPRENTICE ; MARRIED WOMEN ; PARENT AND CITILD ; GUARDIAN; MASTER AND SERVANT.
This right becomes subject to judicial de termination when the law requires the pub lic custody of the person as the means of vindicating the rights of others. The securi ty of the liberty of the individual and of the rights of others is graduated by the intrinsic equity of the law, in purpose and applica tion. The means of protecting this liberty of the individual without hazarding the free dom of others must be sought in the provi sions of the remedial and penal law.
Independently of forfeiture of personal lib erty under such laws and of its limitations in the domestic relations, freedom, in this sense, is a status which is invariable under all legal systems. It is the subject of judi cial determination when a condition incom patible with the possession of personal liber ty is alleged against one who claims freedom as his status. A community wherein law should be recognized, and wherein neverthe less, this status should not be enjoyed by any private person, is inconceivable; and, wherever its possession is thus controverted, the judicial question arises of the personal extent of the law which attributes liberty to free persons. The law may attribute it to every natural person, and thereby pre clude the recognition of any condition incon sistent with its possession. This universal extent of the law of free condition will oper ate in the international as well as in the in ternal private law of the state. In most European countries the right of one, under the law of a foreign country, to control the person of another who by such law had been his slave or bondman is not recognized un der that international rule for the allowance of the effect of a foreign law which is called comity, because the law of those countries attributes personal liberty as a right to every natural person. 1 Hurd, Law of Free dom §§ 116, 300.
In other countries the power of the mas ter under a foreign law is recognized in spec ified cases by a statute or treaty, while an otherwise universal attribution of personal liberty precludes every other recognition of a condition of bondage. On this principle,
in some of the United States, an obligation to render personal service or labor, and the corresponding right of the person to whom it is due, existing under the law of other states, were not enforced except in cases of claim within art. 4, sec. 2, ¶ 3 of the consti tution of the United States ; Com. v. Ayes, 18 Pick. (Mass.) 193 ; Lemmon v. People, 20 N. Y. 562.
Legal rights_ are the effects of civil society. No legal condition is the reservation of a state of nature anterior to civil society. Freedom, as here understood, is the effect of law, not a pre-existing natural element. It is, therefore, not necessarily attributed to all persons within any one jurisdiction. But personal liberty, even though not attributed universally, may be juridically regarded as a right accordant with the nature of man in society ; and the effect of this doctrine will appear in a legal presumption in favor of free condition, which will throw the bur den of proof always on him who denies it. This presumption obtained in the law of Rome (XII Tab. T. vi. 5; Dig. lib. 40, tit. 5, 1. 53; lib. 43, tit. 29, s. 3, 1. 9 ; lib. 50, tit. 17, 11. 20, 22) even when slavery was derived from the pus gentfum, or that law which was found to be received by the general reason of mankind ; 1 Hurd, Law of Freedom § 157.
In English law, this presumption in favor of liberty has always been recognized, not only in the penal and remedial law, but in applying the law of condition, at a time when involuntary servitude was lawful ; Fortesque, cc. 42, 47; Co. Litt. fol. 124 b; Wood, Inst. c. 1, § 5. In the slave-holding states, a presumption against the freedom of persons of negro descent arose or was declar ed by statute ; Cooper, Justin. 485; Bell v. Dozier, 12 N. C. 336; Macon & W. R. Co. v. Holt, 8 Ga. 157. In interpreting manumis sion clauses in wills, the rule differed in the states according to their prevailing policy ; Cobb, Slay. 298.