CHAPTER VIII.
THE BILL OF RIGHTS.
THE English common law, which lies at the basis of English and American liberties, is the growth of centuries, and its maxims breathe the very spirit of the race. It is that "law of the land," to which the Magna Charta of King John referred for the guarantee of personal rights; and its essential principles are interwoven with the Petition of Right of Charles I., and the Bill of Rights and Act of Settlement of the Revolution of 1688. So far as applicable to American conditions, "it was brought over by our ancestors," says Chancellor Kent, "upon their first emigration to this country."[1] And the royal charters included it in their provision, that Englishmen in the colonies should be entitled to the same privileges as Englishmen at home.[2]
Formal declarations of rights, drawn from the common law, were incorporated in the earliest colonial legislation. Plymouth Colony, in the first of these, enumerated, among other privileges, that justice should be impartially and promptly administered, with trial by jury, and that no person should suffer in life, limb, liberty, good name, or estate, but by due process of law.[3] Connecticut, in 1639, adopted an act closely similar. New York enacted, in 1691, that no freeman should be deprived of any rights, or liberties, or condemned, save by the judgment of his peers, or the law of the land; that no tax should be levied except by act of the legislature in which the colonists were represented; that trial by jury should be maintained, and that in all criminal cases there should be previous indictment by a grand inquest. Though the king repealed this act, another, of like import, was adopted in 1708.[4] Massachusetts, in 1641, promulgated a Body of Liberties, the first paragraph of which reads: "No man's life shall be taken, no man's honour or good name shall be stained, no man's person shall be arrested, restrained, banished, dismembered, nor anyways punished, no man shall be deprived of his wife or children, no man's goods or estate shall be taken away or anyway endangered under colour of law or countenance of authority, unless it be by virtue or equity of some express law of the country warranting the same, established by the General Court and sufficiently published, or in case of the defect of the law in any particular case, by the Word of God, and in capital cases, or in cases concerning dismembering or banishment, according to that word to be judged by the General Court." In like manner, declaration of rights was made by the legislature of Virginia in 1624 and 1676; by the legislature of Pennsylvania in 1682; of Maryland in 1639 and 1650; and of Rhode Island in 1663; and also by the proprietaries of Carolina in 1667, and of New Jersey in 1664, 1683, and at other dates. The assembly of Maryland of 1638-1639 declared Magna Charta to be the measure of their liberties.
The whole subject of privileges was forced into special prominence by the outbreak of the constitutional struggle between the colonies and England. And so it was that the congress of delegates from nine colonies, which met in New York in 1765, issued a general declaration of rights; and that a further and more formal pronouncement of the same character was put forth by the first Continental Congress in 1774. The latter became the basis of the bills of rights which eventually were incorporated into the constitutions of the new States. It 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 born 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 entitled to a free and exclusive power of legislation in all matters of taxation and internal policy, in their several provincial legislatures, where their right of representation could alone be preserved; that the respective colonies were entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinity, according to the course of that law; that they were entitled to the benefit of such 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 they were likewise entitled to all the immunities and privileges granted and confirmed to them by royal charters, or secured by their several codes of provincial laws."[5]
It was widely anticipated by the public that the national Constitution drafted at Philadelphia would contain a full enumeration of such ancient rights. The members of the Convention seem not to have appreciated the force of this popular feeling; considering that as the people themselves now possessed the power of making their own laws and of selecting those who should execute them, specific announcement of privileges which had grown out of old controversies with the crown was unnecessary. Sufficient provision was made in the body of the Constitution for taxation by the legislature only, for judgment in cases of impeachment, for the privilege of the writ of habeas corpus, for trial by jury in criminal cases, for the definition, trial, and punishment of treason with limitation of historical abuses in such connection, for the prohibiting of bills of attainder, ex-post facto laws, and laws impairing the obligation of contracts or imposing religious tests.[6] All these were so many declarations of rights for the protection of the citizens, not exceeded in value by any which could possibly find a place in any bill of rights.[7] But as soon as the draft of the Constitution left the Convention, the lack of a formal bill was severely and persistently criticised by the people. And the promise that one should be added, as soon as the new government actually got under way, was found necessary in order to induce some of the principal States to ratify the instrument. The first ten amendments, therefore, were adopted as speedily as possible by the first Congress and the nation; and to all intents they are to be regarded as a part of the Constitution in its original unity, as a product of the formative period.[8] Their position in this respect is essentially different from that of the amendments which are the outcome of subsequent national experience.
Thus there is not only a bill of rights in the Constitution of the United States, but that bill of rights was consciously demanded by the American people themselves against the judgment of their own Constitutional Convention, and for the express reason that they regarded the liberties included therein as their liberties, because based upon old English law.
Let us take up consecutively these ten amendments. The first reads: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the right of the people peaceably to assemble, and to petition the government for a redress of grievances."[9]
The first clause of the amendment treats of the right of religious liberty, — a right the daughter-land was before the mother-country in establishing. The English Toleration Act of 1688[10] granted privileges to dissenters, which their active share in seating William of Orange on the throne was thought to have earned; and though far from according religious freedom, it laid foundation for the future. Reactionary statutes passed in the latter part of the reign of Queen Anne were repealed in the early years of the House of Hanover;[11] and from the accession of George II. dissenters were admitted to civil offices.[12] The laws against Roman Catholics, also, were gradually softened in operation.[13] Early in the reign of George III. modern principles of toleration were enunciated in a judicial decision of the Lords,[14] on which occasion Lord Mansfield declared, in moving the judgment of the House: "There is nothing certainly more unreasonable, more inconsistent with the rights of human nature, more contrary to the spirit and precepts of the Christian religion, more iniquitous and unjust, more impolitic, than persecution. It is against natural religion, revealed religion, and sound policy."[15] Regulations relating to dissent became more and more relaxed. And on the verge of the adoption of the American Constitution, measures for the relief of both Roman Catholics and Protestants were passed; and these were followed by a series of acts which eventually removed all civil disabilities.
Of the condition of things in the colonies, Green thus speaks: "Europe saw, for the first time, a state growing up amid the forests of the west, where religious freedom had become complete. Religious toleration had, in fact, been brought about by a medley of religious faiths such as the world had never seen before. New England was still a Puritan stronghold. In the southern colonies the Episcopal Church was established by law, and the bulk of the settlers clung to it; but Roman Catholics formed a large part of the population of Maryland. Pennsylvania was a State of Quakers. Presbyterians and Baptists had fled from tests and persecutions to colonize New Jersey. Lutherans and Moravians from Germany abounded among the settlers of Carolina and Georgia. In such a chaos of creeds, religious persecution became impossible."[16]
The boast was wont to be made, that the Puritans of New England led the way in establishing by law religious toleration. A similar claim is still put forth on behalf of the Baptists of Rhode Island and the Roman Catholics of Maryland. The honour belongs to Rhode Island, where legal action of the colony — proceeding, however, from the co-operation of diverse religious elements — was taken in 1647.[17] The toleration practised earlier in Maryland was of limited character.
In 1664 the proprietaries granted to the colonists of New Jersey the widest toleration. Enactments known as the Duke's Laws, issued in 1665 by an assembly which met on Long Island at the call of Governor Nichol, declared that no person professing a belief in Christianity should be molested for his judgment in matters of religion.[18] The same principles were again promulgated in 1665, in the charter of liberties established by the assembly, acting under the Duke of York.[19] Charles II., in his charter of 1667, authorized the proprietaries of Carolina to accord religious liberty to non-conformists who did not by their non-conformity disturb the civil peace of the province. Massachusetts, in 1691, passed an act benefiting all but Roman Catholics; and the Quaker, William Penn, gave his colony, ten years later, a law guaranteeing freedom of conscience. Toleration similar to that of Massachusetts was provided in the charter granted by George II. to Georgia in 1732.
Thus when the Constitution of the United States was formulated, the principle of religious freedom had been for some time gathering strength. Partly from this cause, and probably yet more from the fact that no one Christian body was in sufficient numerical predominance to make an ecclesiastical establishment of it for the nation a political possibility, it was enacted; "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."[20] In Article VI. of the Constitution it had been laid down already: "No religious test shall ever be required as a qualification to any office or public trust under the United States," a reference to the English Test Act of 1673.[21]
The next provision in Article I. of the amendments relates to freedom of public utterance and the press. The invention of printing in the fifteenth century brought with it a censorship, which was in the hands of the ecclesiastical power throughout Europe. After the Reformation, this censorship devolved, in England, upon the crown; and a licenser was regularly appointed whose imprimatur was required for the lawful publication of any writing. Printing was regulated further by royal proclamations and grants of privilege.[22] The unlicensed issue of anything deemed seditious or slanderous was punished by mutilation and death.[23] And in the reigns of the first two Stuarts, political and religious discussion was vigorously repressed by the Star Chamber. The Long Parliament used the weapon of censorship on the lines laid down by that obnoxious court, with such severity as to call forth from John Milton the Areopagitica, denouncing the suppression of truth by a licenser, and appealing for "the liberty to know, to utter, and to argue freely according to conscience, above all liberties."[24] After the Restoration, the Licensing Act, based upon the former parliamentary ordinances, was established for a period of three years, placing the regulation of printing in the control of the government of Charles II.[25] The act was continued by repeated renewals until 1679;[26] and was reaffirmed in 1685 by James II. for a term of seven years, and again, in 1692, by William and Mary. Efforts further to revive it proved unsuccessful, and it expired in 1694. From the latter date censorship has formed no part of English law.[27] This emancipation, having such vast results in later times, attracted slight attention at the moment. And in fact, though theoretically free, the press was still molested not a little. It steadily rose in influence, and in the first thirty years of George III. attained the beginnings of its present greatness.[28]
The last clause of Amendment I. deals with the right of petition. For many generations the exercise of the right was practically limited to redress of grievances, but just before the time of the Commonwealth, petitions on political subjects came into being, and many such were presented to Charles I. and to the Long Parliament. There was some intimidation by numerous bodies of petitioners, during that stormy period, and it was probably the memory of this that caused Charles II. to restrain, or rather to regulate, the right in such manner as to protect the government. In the Bill of Rights of William and Mary, the privilege received sanction in the declaration: "It is the right of the subject to petition the king; and all commitments and prosecutions for such petitioning are illegal."[29] The present practice dates from 1779, just previous to the establishment of the American Constitution, when a widely organized attempt was made to procure the adoption of a certain measure in Parliament, by presenting numerously signed petitions from every part of England. This may properly be considered the beginning of the modern system of petitioning by which public measures and matters of public policy have been urged upon the attention of Parliament. The privilege came into special prominence in the colonies at the Revolutionary epoch, the Congress of 1774 distinctly claiming it in the Declaration of Rights: "They [the colonists] have a right peaceably to assemble, consider grievances, and petition the king, and that all prosecutions prohibiting proclamations and commitments for the same are illegal."[30]
The second amendment deals with the question of a trained militia, and the right of the people to bear arms, — a right involving the latent power of resistance to tyrannical government. From prehistoric days right to bear arms seems to have been the badge of a Teutonic freeman, and closely associated with his political privileges. Such armed freemen made up the military host of the tribe. During Saxon times in England, there was a fyrd, or national militia,[31] service in which was one of the three duties — trinoda necessitas — to which every alodial proprietor was subject. This is met in full vigour long after the Norman Conquest, working its way through the superstratum of feudalism. It continued side by side with the feudal system, until, under Henry III. and Edward I., the two were united in a general national armament. By the law known as the Assize of Arms, in 1181, every freeman was required to provide himself with a doublet of mail, iron skull-cap, and lance. In the reign of Queen Mary, this law was altered to provide for arms of a more modern sort.[32] James I. abrogated it.[33] But although the militia languished for awhile, as the standing army grew in efficiency, it was restored to vigour in 1757. The Bill of Rights provided: "The subjects which are Protestants may have arms for their defence, suitable to their conditions, and as allowed by law."[34]
Upon this is based the second amendment to the Constitution, which reads: "A well-regulated militia being necessary for the security of a free state, the right of the people to keep and bear arms shall not be infringed."[35] And concerning it, Judge Cooley remarks: "It was adopted, with some modification and enlargement, from the English Bill of Rights of 1688, where it stood as a protest against arbitrary action of the late dynasty in disarming the people, and as a pledge of the new rulers, that this tyrannical action should cease. The right declared was meant to be a strong moral check against the usurpation of arbitrary power by rulers, and as a necessary and efficient means of regaining rights temporarily overturned by usurpation."[36]
The third amendment deals with the quartering of the troops on private citizens, a provision which speaks for itself, and the object of which is to secure the enjoyment of the great right of the common law, that a man's house shall be his castle, privileged against civil and military intrusion. Among the tyrannies objected to in the Petition of Right of the time of Charles I. is, that "of late great companies of soldiers and mariners have been dispersed into divers counties of the realm, and the inhabitants, against their wills, have been compelled to receive them into their houses, and there to suffer them to sojourn, against the laws and customs of this realm, and to the great grievance and vexation of the people."[37] By a law of Charles II. it was enacted "that no officer, military or civil, or other persons shall quarter or billet any soldier upon any inhabitant of this realm, without his consent, and that every such inhabitant of this realm may refuse to quarter any soldier, notwithstanding any order whatsoever."[38] Nevertheless, a complaint is to be found in the Bill of Rights, that James II. had violated fundamental liberties of the realm by, among other things, "quartering soldiers contrary to law,"[39] and a similar complaint against both king and Parliament is recorded in the Declaration of Independence: "He [George III.] has combined with others ... giving his assent to their pretended legislation, for quartering large bodies of armed troops among us." The language of the constitutional amendment is: "No soldier shall, in time of peace, be quartered in any house without the consent of the owner, nor in time of war, but in a manner to be prescribed by law."
The fourth amendment touches upon the question of protection against civil search without formal warrant, and the subject of general warrants.
The warrant — the paper which authorizes so grave an act as depriving a citizen of personal liberty — is necessarily surrounded with safeguards to protect the private individual against unjust and arbitrary police measures. The English race has been insistent with reference to these safeguards, and the warrant, as we now have it, is a characteristically English institution. A warrant must always name the person against whom it is directed. A general warrant, i.e. one that does not name the person, is contrary to English freedom.[40] But the latter point was not established until just before the American Revolution, — the illegal custom of the arresting of persons on general warrants lingering even into the reign of George III., when it received its death blow in the famous case of Wilkes. The question was raised by the printing of the libellous Number Forty-Five of the North Briton, the authorship of which was at first unknown. Lord Halifax, one of the secretaries of state, issued a general warrant describing no individual, but empowering the police to take whomever they might think guilty; which resulted in the arrest of many innocent persons, and finally, among them, of the culprit himself, — with seizure of his papers.[41] He resisted on the ground that he had not been described in the warrant. And after litigation which aroused the excited sympathy of both England and the colonies, he won legal decision in his favour, and obtained damages against those who, on a general warrant, had invaded his liberties.[42] The cause of freedom was vindicated. The courts decided against the validity of general warrants, and the decision was confirmed by the House of Commons and sustained by popular opinion. The amendment to the Constitution reads: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized." Amendments V. to X. inclusive read as follows: —
Article V. "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land and naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."
Article VI. "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State or district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favour, and to have the assistance of counsel for his defence."
Article VII. "In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of the United States than according to the rules of the common law."[43]
Article VIII. "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."
Article IX. "The enumeration of the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
Article X. "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
The provisions in these articles, intended to assure criminal justice, are mainly from the English common law. The expression, "twice put in jeopardy of life or limb," has descended from days when sanguinary punishments were frequent. The clause, "nor shall be compelled in any criminal case to be a witness against himself," was there placed to prevent repetition of the inquisitorial proceedings once practised in England. The requirement, that just compensation be made for private property taken for public uses, rests upon Magna Charta; as does also the provision for speedy trial, and that no person be "deprived of life, liberty, or property without due process of law."[44]
The common-law origin and force of the claims in the sixth amendment requiring that the accused be informed of the nature and cause of the accusation, and be confronted with witnesses against him, is so understood and admitted in practice, that surprise has been occasioned that these specifications should have been thought needful. Of the succeeding provisions of this article for "compulsory process of obtaining witnesses in his favour and to have the assistance of counsel in his defence," the same cannot be said. For it was a strange old practice, derived from the Roman civil law, to allow a party accused of capital offence no opportunity to clear himself by the testimony of witnesses in his favour. The practice was denounced by Sir Edward Coke as unjust; and soon after the accession of James I., the House of Commons carried, in spite of opposition from the crown and upper house, a clause providing that in certain cases witnesses might be sworn for, as well as against, the accused. By a statute of William and Mary, the same principle was established for cases of treason;[45] and in the reign of Queen Anne, this was extended.[46] Yet, at the period of the construction of the American Constitution, the law did not allow the privilege in ordinary capital cases; and the amendment, in extending it to all classes of criminals without restriction, was, therefore, an important improvement upon the usage of the mother-country. Another singular English deficiency — the failure in certain circumstances to give a prisoner under capital accusation the benefit of counsel for his defence — was supplied in the American Constitution by the guarantee of counsel in all cases.[47]
The eighth amendment treats of excessive bail and punishment, and is simply a transcript of a clause in the Bill of Rights framed at the Revolution of 1688. Its object is to warn the national government against such proceedings as took place in England during the arbitrary Stuart period, — when a demand for enormous bail was often made against persons obnoxious to the court; who, failing to procure this, were thrown into prison. Excessive fines and amercements were also occasionally imposed, and vindictive and cruel punishments meted out. The clause in the Bill of Rights from which the amendment was drawn specifies: "That excessive bail ought not to be required, nor excessive fines imposed; nor cruel and unusual punishment inflicted."[48]
We come, in conclusion, to trial by jury — as provided in Article III. of the Constitution for criminal cases; and in the amendments, for criminal cases and civil actions alike — one of the most characteristic elements of the American constitutional inheritance from England.
The origin of this "bulwark of constitutional liberty" has been the topic of a great deal of learned discussion and of many antagonistic theories.[49] Probably the jury in its earliest form, that of a body of sworn recognitors, was introduced into England by the Normans, they having borrowed it from the Franks. It is traceable to the capitularies of the Carolingian kings, and possibly through these, to the fiscal regulations of the Theodosian Code, — thus having some affinity to the Roman jurisprudence.[50] But although an importation, the system gained its real development in England alone, and gradually ceased to exist in Normandy and in the rest of France. From a simple beginning at the Conquest, it was consolidated in the reign of Henry III., and became one of the settled institutions of the land, in close relationship with the old Saxon procedure of the shiremoot. This king, who has been called its father, applied it to every variety of fiscal and legal transaction; and down to much later days it was used largely in the assessment of taxation. The Constitutions of Clarendon give the earliest record in statute law of its employment for criminal presentment and civil inquest.[51] Later, in the Assize of Clarendon, provision was made that twelve men from each hundred, with four from each township, should be sworn to present all reputed criminals of their district in each county court, — a jury of presentment, which may have been, in part, an enlargement of a Saxon institution existing as far back as the reign of Ethelred II., and which, as regulated by the Articles of Visitation of Richard L, gave rise to the grand jury of modern times. From a desire to still further promote the security of justice, there arose a procedure of having the testimony of this body examined by a second body — the petit jury — and this procedure eventually became settled usage.[52]
But at first the process of trial by jury was different in many respects from that with which we are now familiar. Palgrave states this difference with admirable clearness. "Jurymen in the present day are triers of the issue; they are individuals who found their opinion upon the evidence, whether oral or written, adduced before them; and the verdict delivered by them is their declaration of the judgment which they have found.
But the ancient jurymen were not impanelled to examine into the credibility of evidence; the question was not discussed and argued before them; they, the jurymen, were the witnesses themselves, who, of their own knowledge, and without the aid of other testimony, afforded their evidence respecting the fact in question to the best of their belief. In its primitive form a trial by jury was therefore only a trial by witnesses."[53] That is to say, the jurors decided from their own personal knowledge of the facts, or from tradition, without other witnesses than themselves. And, incidentally, this explains an important point, — namely, why the trial was properly held in the locality of the accused's residence, and the jury chosen from the vicinage in which the question arose.[54] The development by which jurors ceased to be witnesses, and became judges of the fact, is common to both the criminal and the civil jury, and is traceable from the time of Edward III.[55] Out of the difficulty of securing twelve men acquainted with the matter in trial and able to give a unanimous verdict based on personal knowledge, grew the custom of permitting the jurors who were first summoned to add to their number persons having such knowledge.[56] And later on, jurors without information were separated from those possessing it, the former becoming judges of evidence only, and the latter witnesses; a decision being given by the former upon the testimony of the latter, and the law in the case being decided by the presiding official in the king's name.[57] By 1450 we have distinct evidence that the mode of procedure was the same as that in modern use,[58] though in occasional instances the ancient functions of jurors lingered as late as to the accession of the House of Hanover.
The Declaration of Independence complains of the British government "for depriving us in many cases of the benefits of trial by jury," and for "transporting us beyond seas to be tried for pretended offences."
"Trial by jury," it has been said, "is justly dear to the American people. It has always been an object of deep interest and solicitude, and every encroachment upon it has been watched with great jealousy."[59] "The privilege in criminal cases has been looked upon as a necessary part of the liberties of the people, and a sentiment attaches to it which will scarcely suffer its value to be questioned. Every State constitution preserves its suits in the State courts, and every new and revised constitution repeats the guaranty of it. Even the common-law requirement of unanimity in the verdict, which is of more than doubtful value, is retained without inquiry or question, because it has existed from time immemorial."[60]
The proud words of retort to Montesquieu, with which Blackstone ends his panegyric on the jury system, are as applicable to America as to England; "A celebrated French writer, who concludes that Rome, Sparta, and Carthage have lost their liberties, therefore those of England in time must perish, should have recollected that Rome, Sparta, and Carthage, at the time when their liberties were lost, were strangers to the trial by jury."[61]
Whatever may be in store for America, her past is closely inwrought with that of England. Her laws, as her language, have descended to her. For, though our ancient Teutonic race, in these new days, may encircle the globe, and find itself scattered on all continents and beside all seas, it will have ever one common home.
The Constitution of the United States possesses much that is peculiar to itself. It is not the English Constitution of any age. Yet it is "heir of all the ages" of English history. For the most part, as we have seen, it applies to new conditions, time-tried principles of free government.
It is well thus to call to mind that what is best and noblest in American governmental institutions is safely founded upon an historic past. The oak of English freedom that the fathers of America transplanted, has grown old and gnarled and stanch and great of girth, and its firm roots have struck down deep into the soil. Though clouds of social and political problem may lower above it, it recks not of momentary sunshine or passing tempest, — that sturdy oak, bounded by the succeeding circles of the centuries, and growing only more strong with the ongoing of the years.
[1] "The common law of England, so far as it was applicable to our circumstances, was brought over by our ancestors upon their emigration to this country. The Revolution did not involve in it any abolition of the common law. It was rather calculated to strengthen and invigorate all the first principles of that law, suitable to our state of society and jurisprudence. It has been adopted, or declared in force, by the constitutions of some of the States, and by statute in others. And where it has not been so explicitly adopted, it is nevertheless to be considered as the law of the land, subject to the modifications which have been suggested, and to express legislative repeal." — Kent, Commentaries on American Law, II. 28.
[2] Kent summarizes the facts thus: "It was a provision in the charters of the Virginia settlers 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 1663; of Maryland in 1632; of Carolina in 1663; and of Georgia in 1732; that they and their posterity should enjoy the same rights and liberties which Englishmen were entitled to at home. Such privileges were implied by the law, without any express reservation. The like civil and religious privileges were conceded to New Jersey by the proprietaries in February, 1665." — Commentaries on American Law, 12th ed. II. 2, n.
[3] "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 descendants. Those rights were afterwards, in the year 1692, on the receipt of their new charter, reasserted and declared." — Ibid. II. 2.
[4] Laws of New York, 1708.
[5] Journals of Congress, I. ed., Phila. 1800.
[6] Regarding attainder and ex-post facto laws, Mr. Justice Miller remarks: "The prohibition against passing bills of attainder is one which was intended to guard against a danger which has passed out of the memory of the present generation. Up to the time of the formation of this Constitution, the Parliament of England had been in the habit, by legislative enactments, of declaring individuals attainted for treason, for murder, for conspiracies, and further crimes, especially crimes against the government. This declaration of attainder by the legislative body was accompanied, either impliedly, or by the express terms of the bill, with a deprivation of all rights of property and of all capacity to transmit property by descent, or acquire it in that manner, in addition to punishments such as death and other cruelties. This kind of proceeding was had, not in a court of justice, ... but the legislature, the Parliament, either with or without inquiry, or with such insufficient inquiry as they chose to make, generally in the absence of the victim, proceeded at once to make charges, decide upon the guilt of the party, and announce the punishment, thus acting in all instances as the sovereign, the legislative, and judicial power at the same time." It was at one time suggested that ex-post facto laws, "equally forbidden to the general government and to the States, might be held to be any law which affected the rights of a person civilly or criminally after those rights had been acquired or established in accordance with existing laws. This, however, is a mistake, and the phrase 'ex-post facto laws ' has application alone to laws which relate to crimes and criminal proceedings, because it was used in that limited sense by our English ancestors long previous to the formation of the Constitution. The contemporary accounts of its adoption show that such was the sense in which the Convention understood it." — Lectures on the Constitution of the United States, 584-586. The Supreme Court of the United States has decided for this interpretation, in cases which have come before it, affirming the English origin, as it constantly does in its decisions on constitutional and legal questions. See Calder v. Bull, 3 Dall. 386; Watson v. Mercer, 8 Pet. 88, no; Satterlee v. Matthewson, 2 Pet. 380; Kring v. Missouri, 107 U. S. 221.
[7] See Federalist, No. 84.
[8] "With a view of carrying into effect popular will, and also of disarming the opponents of the Constitution of all reasonable grounds of complaint, Congress, at its very first session, took into consideration the amendments so proposed; and by a succession of supplementary articles provided, in substance, a bill of rights, and secured by constitutional declarations most of the other important objects thus discussed" in the conventions of the States that adopted the Constitution. "These articles (in all twelve) were submitted by Congress to the States for their ratification, and ten of them were finally ratified by the requisite number of States, and thus became incorporated into the Constitution." — Story, Commentaries on the Constitution of the United States, I. 211, § 303.
[9] In the conventions of the States which ratified the Constitution, the criticism of that document for its omission of a bill of rights found expression in specific recommendations, urged with more or less zeal and determination. The amendment embraces recommendations of the conventions of New Hampshire, Virginia, and North Carolina.
[10] 1 Will. and Mary, c. 18.
[11] 5 Geo I. c. 4.
[12] This was done by means of the Annual Indemnity Acts passed in favour of those who had not qualified themselves under the Corporation and Test Acts. The first Indemnity Act was passed in 1727. With few exceptions, similar acts were passed every year thereafter, until the Test and Corporation Acts were repealed in 1828.
[13] 1 Geo. I. c. 55, and 26 Geo. II. c. 33.
[14] Chamberlain of London v. Allen Evans, Esq.
[15] Cobbett, Parliamentary History, XVI. 313-327. Among the strong sayings of Lord Mansfield in this connection was the remark: "Persecution for a sincere, though erroneous, conscience, is not to be deduced from reason or the fitness of things."
[16] History of the English People, V. 216.
[17] This action is to be found in the code of laws of the first legislature under the first charter. The legislators claim "to be men of different consciences, and not one willing to force another." The code ends with the words: "These are the laws that concern all men, and these are the penalties for the transgression thereof, which by common consent are ratified and established throughout this whole colony; and otherwise than this, what is herein forbidden, all men may walk as their consciences persuade them, every one in the name of his God. And let the saints of the Most High walk in this colony without molestation in the name of Jehovah, their God, for ever and ever." — Rhode Island Colonial Records, I. 156-190. It has been claimed that the charter of 1643, granted by Warwick, accorded religious freedom; but ambiguity in the language of the charter leaves the question open to doubt. See the text of this document in Poore, Constitutions, II. 1594, 1595; but see also the able argument of S. G. Arnold, History of the State of Rhode Island, I. 200. Correspondence and early town laws show that a sentiment favourable to religious liberty existed from the beginning of colonial settlement. This sentiment was much influenced by Roger Williams. Not improbably, Roger Williams, himself an Englishman, received impressions on the subject from the Dutch-English Anabaptists, though that seems not to be historically demonstrated.
[18] Thompson, History of Long Island, I. 132, ed. 1843.
[19] Douglas Campbell observes: "Of all the thirteen [original States], two and two only — Virginia and New York — embodied in their [new State constitutions] guarantees of religious liberty.... The other States retained religious tests for their officials, or in some form made religious discriminations. Virginia, in 1776, issued a Declaration of Rights, which, it is claimed, formed part of her constitution, laying down the principle" of religious liberty. "Still the State retained its established Church until 1785, and in various other ways fell short of practising full religious liberty. New York, however, in its first constitutions adopted in 1777, proceeded at the outset to do away with the established Church.... Then followed a section much broader and more explicit than that of the Virginia Declaration of Rights." — Puritan in Holland, England, and America, I. 250. This author claims that the New York constitutional enactment is the basis of American religious liberty, and because it was an enactment of New York, gratuitously assumes it to be of Dutch origin, — though in truth it was but a logical outcome of the laws of the Duke of York, 1665, adopted under English influence. So far as the American Constitution is concerned, the first amendment seems to have originated in the rivalry of the numerous religious bodies on American soil, and to have been but faintly traceable to any foreign influence. See action of New Hampshire convention
[20] Constitution of the United States, Amendment I.
[21] 25 Car. II. c. 2. The famous Test Act was passed "for preventing dangers which may happen from Popish recusants." It worked much injustice.
[22] "All printing was interdicted elsewhere than in London, Oxford, and Cambridge; and nothing whatever was allowed to be published until it had first been 'seen, perused, and allowed' by the Archbishop of Canterbury, or the Bishop of London, except only publications by the queen's printer, to be appointed for some special service, or by the law printers, for whom the license of the Chief Justices was sufficient." — Taswell-Langmead, English Constitutional History, 766.
[23] St. 23 Eliz. c. 2. See cases of Stubbe, 1579; Udal, 1591; Barrow and Greenwood, 1593; Penry, 1593.
[24] Milton, Areopagitica, 73, 74, Arber's Reprints. In the British Museum are over 30,000 political newspapers and pamphlets that were printed in the twenty years between 1640 and the Restoration of Charles II. Douglas Campbell notes that Milton in no way refers to Holland or to Dutch ideas in advocating liberty of the press. Puritan in Holland, England, and America, II. 344, n. 2.
[25] 13 and 14 Car. II. c. 33.
[26] "After the Licensing Act had been temporarily suffered to expire in 1679, the twelve judges, with Chief-Justice Scroggs at their head, declared it to be criminal at common law to publish anything concerning the government, whether true or false, of praise or censure, without the royal license. All newspapers were in consequence stopped; and the people were reduced, for political intelligence and instruction, to two government publications.... In the absence of newspapers, the coffee-houses became the chief organs through which the public opinion of the metropolis vented itself, while the inhabitants of provincial towns, and the great body of the gentry and country clergy, depended almost exclusively on news-letters from London for their knowledge of political events." — Taswell-Langmead, English Constitutional History, 768.
[27] Lord Macaulay declared that the emancipation of the press had "done more for liberty and for civilization than the Great Charter or the Bill of Rights." — History of England, IV. 542.
[28] It is not impossible that the example of Holland has aided the progress in America of the idea of freedom of the press. But although Douglas Campbell (Puritan in Holland, England, and America) strenuously asserts that Holland's example has so aided, he signally fails to establish the point, and no one else has really attempted to establish it. As a matter of fact, censorship of the press existed in the American colonies. In New England this lasted till about 1755. See Tyler, History of American Literature, I. 113. Thus, in 1723, Benjamin Franklin was forced to leave Massachusetts for Pennsylvania on account of a libel, and his brother was imprisoned. A declaration of the principle of entire freedom of publication was incorporated in the second constitution of Pennsylvania, in 1790, only just previous to the amendment to the national Constitution referred to in the text. This action of Pennsylvania distinctly referred to English laws and usage. In 1805 and in 1821 New York recognized this principle. Other States have made similar provisions.
[29] 1 Will. and Mary, Sess. 2, c. 2.
[30] Eighth Resolution.
[31] The fyrd, the armed folkmoot of each shire, was originally the only military organization known to the English.
[32] 4 and 5 Phil. and Mary, c. 2 and c. 3.
[33] 1 Jac. c. 25, § 46.
[34] 1 Will. and Mary, Sess. 2, c. 2. Blackstone remarks that this declaration providing for the possession of arms "is a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanction of society and the laws are found insufficient to restrain the violence of oppression." — Commentaries, I. 154.
[35] The convention of New Hampshire which acted on the adoption of the national Constitution, proposed as an amendment: "Congress shall never disarm any citizen, unless such as are, or have been, in actual rebellion." The conventions of Virginia and New York proposed: "That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free state"; and "that any person religiously scrupulous of bearing arms, ought to be exempted, upon payment of an equivalent to employ another in his stead."
[36] Principles of Constitutional Law, 270.
[37] 3 Car. I. c. I, § 6.
[38] 31 Car. II. c. 1.
[39] 1 Will. and Mary, Sess. 2, c. 2. The provisions of this statute and of the Petition of Right against the billeting of troops are suspended every year by authority of Parliament, in the Mutiny Act, which accords express permission to billet soldiers in inns and victualling-houses.
[40] See Lieber, Civil Liberty and Self-Government, 62.
[41] "There was a libel, but who was the libeller? Ministers knew not, nor waited to inquire, after the accustomed forms of law; but forthwith, Lord Halifax, one of the secretaries of state, issued a warrant, directing four messengers, taking with them a constable, to search for the authors, printers, and publishers, and to apprehend and seize them, together with their papers, and bring them in safe custody before him. No one having been charged or even suspected, no evidence of crime having been offered, no one was named in this dread instrument. The offence only was pointed at; not the offender. The magistrate, who should have sought proofs of crime, deputed this office to his messengers. Armed with their roving commission, they set forth in quest of unknown offenders; and unable to take evidence, listened to rumours, idle tales, and curious guesses. They held in their hands the liberty of every man whom they were pleased to suspect. Nor were they triflers in their work. In three days they arrested no less than forty-nine persons on suspicion, — many as innocent as Lord Halifax himself.... The messengers received verbal directions to apprehend Wilkes, under the general warrant. Wilkes, far keener than the crown lawyers, not seeing his own name there, declared it 'a ridiculous warrant against the whole English nation,' and refused to obey it. But after being in custody of the messengers for some hours, in his own house, he was taken away in a chair, to appear before the secretaries of state. No sooner had he been removed, than the messengers, returning to his house, proceeded to ransack his drawers, and carried off all his private papers, including even his will and pocket-book." — May, Constitutional History of England, II. 246, 247.
[42] Lord Chief Justice Pratt thus characterized the warrant: "The defendant claimed the right, under precedents, to force persons' houses, break open escritoires, and seize their papers, upon a general warrant, where no inventory is made of the things thus taken away, and where no offenders' names are specified in the warrant, and therefore a discretionary power given to messengers to search wherever their suspicions may chance to fall. If such a power is truly invested in a secretary of state, and he can delegate this power, it certainly may affect the person and property of every man in this kingdom, and is totally subversive of the liberty of the subject."
[43] Mr. Justice Miller, of the United States Supreme Court, says: "The first thing to be observed about this article is that it prescribes this mode of trial in 'suits at common law.' It does not use the same words as the clause extending the judicial power 'to all cases in law and equity.' It is to be inferred, therefore, that trial by jury, as imposed by the Constitution, has relation to the common law as it was understood in England and to the right to such a trial in that class of cases." — Lectures on Constitution of the United States, 492.
[44] The expression "due process of law " is a technical one. "It has long been in use among law writers, and in judicial decisions, as implying correct and orderly proceedings, which are due because they observe all the securities of private right which are applicable in the particular case. In this sense it is synonymous with 'law of the land,' as used in the famous twenty-ninth chapter of Magna Charta.... The identity of the two in meaning and purpose is now well settled." — Cooley, Principles of Constitutional Law, 222. "As to the words from Magna Charta, after volumes spoken and written with a view to their exposition, the good sense of mankind has at length settled down to this: that they were intended to secure the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private right and distributive justice." — Bank of California v. Okely, 4 Wheat. 235. See also Murray's lessee v. Hoboken Land Co., 18 How. 272, 276; Taylor v. Porter, 4 Hill, (N.Y.) 140, 143; Hoke v. Henderson, 4 Dev. (N.C.) 1; Kinney v. Beverley, I Hen. & M. (Va.) 531; James v. Reynolds, 2 Tex. 250; Norman v. Heist, 5 W. & S. (Penn.) 171; Davidson v. New Orleans, 96 U. S. Rep. 97; Webster in Dartmouth College v. Woodward, 4 Wheat. 518; Webster, Works, V. 487.
[45] 7 Will. III. c. 3. This statute provides that persons indicted for high treason shall have a copy of the indictment delivered to them five days at least before the trial, and a copy of the panel of the jurors two days before the trial; that they shall be allowed the assistance of counsel throughout the trial, and be entitled to process of the court to compel the attendance of their witnesses, who must be examined on oath. It removes any doubts as to the statute of Edward VI., by requiring the oaths of two lawful witnesses, unless the prisoner shall willingly, without violence, in open court confess the charge, etc.
[46] 7 Anne, c. 21.
[47] In the first State constitutions of Maryland, New Jersey, Pennsylvania, Massachusetts, and Vermont, provision was made, guaranteeing counsel in all cases, and from these State provisions the amendment to the national Constitution came. This defect in the English law, thus supplied by America, was remedied in the mother-country by statute 6 and 7 Will. IV. c. 114. See Cooley, Constitutional Limitations, 330-338.
[48] 1 Will. and Mary, Sess. 2, c. 2.
[49] Philipps, On Juries, and Probert, On the Ancient Laws of Cambria, claim that the jury system originated among the Welsh, from whom the Anglo-Saxons borrowed it. Selden, Spelman, Coke, Turner, Philipps, and G. L. von Maurer regard it as an outcome of Anglo-Saxon invention. Bacon, Montesquieu, Blackstone, Savigny, and Nicholson — preface to Wilkins, Anglo-Saxon Laws — maintain that it is an importation from primitive Germany. Wormiers and Worsaae think it came from the Danes, who in turn derived it from the Norsemen. Hickes, Reeves, and others claim a Norse origin through the Normans; and Conrad Maurer points to a north German source. Of writers who admit its Norman origin, Daniels thinks the Normans found it in France, Möhl carries it back to the canon law of the Church, Meyer derives it from Asia by way of the Crusades, and Maciejowski derives it from the Slavic neighbours of the Teutonic invaders of England. Entstehung der Schwurgerichte, 11-19. Bourguignon says despairingly,"son origine se perd dans la nuit des temps." — Memoire sur le Jury. See Forsyth, History of Trial by Jury; Gneist, Self-Government; Glasson, Hist. du Droit et des Inst. de l'Angleterre, etc. Bishop Stubbs — Constitutional History of England — and other recent authorities accept the Carolingian and Theodosian origin, as stated in Palgrave, English Commonwealth, corrected and adjusted by Dr. Brunner, Entstehung der Schwurgerichte.
[50] See Smith, Dictionary of Greek and Roman Antiquities: "Codex Theodosianus." Brunner cites the Theodosian Code: "Super vacantibus ac caducis ... certi etiam dirigantur qui cuncta solerter inquirant et cujus fuerint facultates et si nemo eas sibi jure nititur retentare. Ac si locum fisco factum esse claruerit occupatis prius bonis et rerum omnium descriptione perfecta ...; " Codex Theodosianus, X. 10, L. 11. "Ex privatorum ... sollicitu dine contractum ... illis ... personis a quibus publici numeris injuncta curantur, nullum formitem calumniae patimur litis accendi. Cur enim continentiam venditionis alienae inquisitio palatina rimetur?" Ibid. L. 29.
[51] A.D. 1164.
[52] A.D. 1194.
[53] English Commonwealth, I. 243.
[54] "The testimony of the neighbourhood was appealed to for the purpose of deciding questions which related to matters of general concern." — Forsyth, Trial by Jury, 92.
[55] Year Books, 25 Edw III.
[56] "The proceeding by assize was, in fact, merely the sworn testimony of a certain number of persons summoned to give evidence upon matters within their own knowledge. They were themselves only witnesses. If all were ignorant of the facts, a fresh jury had to be summoned; if some of them only were ignorant, or if they could not agree, others were to be added — a process subsequently called afforcing the jury — until a verdict could be obtained from twelve unanimous witnesses." — Taswell-Langmead, English Constitutional History, 166.
[57] As a result of this "witnesses were examined and cross-examined in open court; the flood gates of forensic eloquence were opened, and full scope given to the advocate to exercise his ingenuity and powers of persuasion on the jurors, to whose discretion the power of judging on matters of fact was now entrusted." — Starkie, "Trial by Jury," Law Review, No. IV., August, 1845.
[58] Fortesque, De Laudibus Legumæ Angæ, c. 26.
[59] Parsons v. Bedford, 3 Pet. 433, 446.
[60] Cooley, Principles of Constitutional Law, 237, 238.
[61] Commentaries, Book III. 379.
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