(~
a0'IO ~~o
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SeaZ of Magna Charta.
Seal of Magna Charta.




IN
ENGLAND AND AMERICA:
CONTAINING
THE GREAT CHARTER,
THE PETITION OF RIGHT,
THE BILL OF RIGHTS,
THE FEDERAL CONSTITUTION.
BY
S. M. JOHNSON.
NEW  YORK:
Carleton, Publifher, 4X3 Broadway.
MD CCC LXIV.




Entered according to Act of Congress, in the year 1864, by
GEORGE W. CARLETON,
In the Clerk's Office of the District Court of the United States for the Southern District
of New York.




IT is said never to be diplomatic, seldom courteous or civil, and
not always safe, to call things by their right names. If an exception is anywhere to be found to this suggestion of policy, it should
surely exempt the discussion of the wide-spread and destructive
opinions which seem now to govern the American people.
The spectacle of an admirable system of laws shamelessly overridden, or wantonly administered, is surely an occasion for plain
speech.
This work is submitted in the hope that an examination of its
contents may lead to a better understanding of the principles and
structure of the States and the Union, and to a higher appreciation
of the duties and obligations of the people in the maintenance of a
free system of laws.
I have discussed at some length the leading doctrines of Free
Government as they have been developed by the Anglo-American
race, and have given a sketch of their progress through the struggles of the Great Charter, the Petition of Right, the Bill of Rights,
up to the adoption of the Federal Constitution.
These great events teach us the important lesson that Experience
is the only safe guide in the creation and maintenance of free institutions. These institutions embrace not alone the mere theory of
Free Government, but the practical enforcement of its principles
in all the affairs of life. Accuracy and completeness of form, in
other words, are valueless without perfect fidelity to the law on the
part of the people and the public administration. All this is exhibited
by our English ancestors in a light so clear as to sink opposing
theories to the level of fiction. In the struggle of 1628, no man
did more to build up the free system of English laws than that
great and honest statesman, Sir Edward Coke.  He is found,
nevertheless, to admit the right of royal dispensation-the right




6                          PREFACE.
of the king to dispense, in certain cases, with the laws of the state.
That was the light in which a great majority of the people, at the
time, viewed their own and the legitimate authority of the crown.
Subsequent experience and observation disclosed the necessity of
making the law supreme, in all cases.
This principle of political progress is just as applicable to us as
it was to our progenitors. It is illustrated with peculiar force in
the history of the American States which, with rare exceptions,
have ever maintained a free system of laws. Descending from this
platform of freedom to the practical life of the Union-to the exercise of power more remote from its source-we find even the
ancient prerogative of royal dispensation not only revived, but so
extended as to set aside both the laws and the Federal Constitution.
I have sought to present a clear view of the great Experiments
in Free Government, of England and America.  The various subjects discussed have, to some extent, a separate interest, but their
general connection is obvious. It is apparent, in going over so
much ground, that many of the lights and shadows of political history and many subjects of the greatest practical importance, at the
present day, must be passed over without that minute pencilling
and investigation which their merits claim. History and biography
are so closely united, that he who undertakes to separate them,
runs some risk of making his work lifeless and practically valueless. This is especially the case in reviewing the great subject of
Free Government, which necessarily embraces the biography of
many of the highest and noblest men of history, as it too often involves the sacrifice of their lives and estates. I have not altogether
neglected the narration of such personal incidents; though, I confess, I have not dealt as largely in them as I could have wished.
In that portion of the work devoted to English and American
political history, I have drawn freely upon cotemporaneous writers,
and have used their reflections, with some necessary modifications of
the text, with and without special credit, as would best carry out
my design.
New Yoir, October, 1864.




CONTENTS.
PART L
CHAPTER i.
FREE GOVERNMENT —ITS CHARACTER AND OFFICE.
PAGE
It is a State of Laws-The British System-Its Rigid Enforcement —The
Union an Elective System-Its Elective Preservation-Its Popular
Failure-Organic Laws —Their Office-Certain Rights of Persons
never Enter into Government-Too much Power a Source of
Weakness,........  17
NOTES,.......      33
CHAPTER IL
THE STATE AND FEDERAL GOVERNMENTS.
Their Unity-The State Exclusive Judge of Prohibited Powers-The Union
not a Civil Polity-Not a Democracy —Persons and Majorities —How
Regarded-The Slavery Question-Its Alleged Incompatibility with
Free Institutions-The Law of its Existence and Extirpation,.  36
NOTE,........      49
CHAPTER III.
THE JUDICIARY.
Its Office in a Government of Laws-Its High Trusts and Duties-Suspected
and Convicted Persons-How Regarded —Habeas Corpus-Extra-Constitutional Measures-Device for Violating Laws-Bold UsurpationsThe Union a Brotherhood-Accountability of Federal Officials to the
Judiciary-The Equilibrium of the System,.                      51
NOTES,...      69
CHAPTER IV.
THE HABEAS CORPUS ACT.
Its Legal Office-Necessary to Free Government-How Suspended-The
Right of the President and Congress Denied-Originated with UsSubordination of the Military Power-Constitution Suspended by
Overthrow of Judiciary —Military Government a Usurpation-Habits




8                            CONTENTs.
PAGE
and Traditions a Part of our System —Demoralizing Effects of Military
Rule upon the Civil Power,....   9
NOTES,.......      96
CHAPTER V.
MARTIAL LAW.
The Guardians of Civil Liberty should understand what is Martial LawIts Origin and Original Powers in England-The Extension of the
Civil Establishment-Martial Law confined after the Great Charter
exclusively to the Military Service-Its Complete Subordination to the
Civil Power by the Petition of Right-The English System Ours-Martial Law in the United States-.Revolutions-Cromwell-His Military
Government through Twelve Major-Generals-Where Laws Fail it is a
Despotism-Exposition of Martial Law by the Supreme Court of the
United States-Its Exposition in England by Lord Loughborough,   99
PART II.
CHAPTER I.
THE ANGLO-SAXON SYSTEM OF LOCAL SOYEREIGNTIES.
Object of the Present Work-Freedom  Among the Anglo-Saxons —Eorls
and Ceorls-Origin of the Distinction-Local Character of the Saxon
System-The Tything and Frank-Pledge-The Hundred —The Burgh —
The Shire-Illustration of County Court Proceedings-Origin of Legal
Customs in the Folk-Courts-Constitution and Powers of the Wittenagemote-Constitution of the Saxon Empire-Decadence of the Saxon
System,.....                          127
NOTES,... 138
CHAPTER II.
THE FEUDAL SYSTEM OF CONSOLIDATED MILITARY POWER.
Origin of the Feudal System-Nature of the Feudal Tenure of Land in
Consideration of Military Service-Socage-Homage-AllegianceAmount of Service-Scutage-Reliefs-Heriots-Fines on Alienation
- Escheats - Aids - Wardship - Marriage —Conversion of Allodial
Lands into Feudal Tenures-Serfdom-Establishment of Feudalism in
England,...... 142
NOTES,......   156
CHAPTER III.
ENGLAND UNDER THE YOKE.
Necessities of Despotism-Suppression of the Anglo-Saxon System  and
Language-Confiscation-The New Forest and Forest Laws-Tyranny




CONTENTS.                              9
of the King over the Nobles-Exact Definition of Conquest-Remnants and Traditions of the Saxon System-Charters-Rufus-Henry
I.-Stephen-Matilda-Henry II.-Richard II.-First Impeachment
by Parliament,....... 161
NOTES,........    168
CHAPTER IV.
THE GIVING OF MAGNA CHARTA.
State of the Kingdom at the Accession of John-Early Acts of his Reign —
Murder of Prince Arthur-Refusal of the Barons to follow John into
France —His Seizure of the Temporalities of Canterbury-Appointment of Langton to the Archbishopric-England under InterdictThe Kingdom given by the Pope to Philip of France-The Interdict
Removed-John's Oath before receiving Absolution-Discovery of the
Charter of Henry I. by Langton-The Barons Swear to Maintain it, and
Demand that John shall Ratify it -They Raise an Army-London Declares for the Barons-The Meeting at Runnymede-The Charter
Granted-Its Character and Provisions-Recognition of the Right of
Rebellion-Hume and Hallam on the Charter,... 176
NOTES,........    185
MAGNA CHARTA,...                                    191
COVENANT OF SECURITY,.                                    204
NOTES ON THE GREAT CHARTER,..... 209
CHAPTER V.
THE RISE OF PARLIAMENTARY REPRESENTATION.
Sufficiencyv of Magna Charta-Necessity of Further Guarantees —Power of
Parliament in the Reign of John-Absence of the Representative Principle-Henry's Ratification of the Charter of King John-Blending of
the Norman and Saxon Races-Henry's Mortgage of the Kingdom to
the Pope-The Government Intrusted to Twenty-Four Barons-The
Civil War-De Montfort's Parliament —Overthrow of De MontfortFirst Constitutional House of Commons-Accession of Edward I.-His
Confirmation of the Charter-Statute de Tallagio non ConcedendoFinal Settlement of Parliamentary Representation,.        229
NOTES,........       238
CHAPTER VI.
TRIAL BY JURY. —THE HIGH COURT OF STAR-CHAMBER.-SLAVERY IN ENGLAND.
Observations on the Period from Edward I. to the Stuarts-Essential Feature of the Jury Trial —The Roman Jury Trial-Peculiarity of the
English Jury Trial-Its Origin in the Saxon Courts-CompurgatorsRecognitors-Trial by Peers in Magna Charta-Witnesses Called in
Aid of Jurors under Edward III.-Modern Constitution of the Jury
Settled under Henry IV.-Subsequent Changes-Blackstone on theJury Trial-Court of Star-Chamber-Its Origin-How Settled under
Henry VII.-Its Jurisdiction under Henry VIII.-Historical Discussion-Mode of Procedure-Its Abuses and Effects-Civil Jurisdiction
of the Star-Chamber-Its Enormities Described by Clarendon-Obser1*




10                           CONTENTS.
P4GB
vations-Saxon Slavery in England-General Remarks on SlaveryAccount from Hallam of its Gradual Disappearance in England-Conclusion,........ 246
NOTES,...      274
CHAPTER VII.
THE STUARTS.-JAMES I.
Character of the Stuart Period-Accession of James-His Speech on Opening his Parliament-Definition of Tyranny-The Doctrine of Divine
Right-Severities against Roman Catholics-Parliament in 1609Act for Compelling Oaths of Allegiance-The Commons Maintain
their Right to Decide Election Returns-Parliamentary PrivilegeTheir " Apology " to the King-They Expel a Member at his Dictation-High Prerogative Speech of James to the Parliament in 1610Illegal Exaction of Tonnage and Poundage-Remonstrance of the Commons-Case of Dr. Cowell-Consideration of Grievances-Attempt at
Union between England and Scotland, and at the Abolition of Feudal
Tenures-Expedients of James for Raising Money-The Undertaker's
Parliament-Parliament of 1620-'21-James's Speech-Dispute of the
Commons with the King on Adjournment-Parliament ReassembledThe Proposed Spanish Match-Petition of the Commons-Angry Letter of James to the Speaker-Second Petition and Remonstrance of
the Commons-James's Answer-Protestation of the Commons-It is
Torn out from the Record by the King-Punishment of MembersParliament of 1623-Monopolies, together with the Suspending and
Dispensing Powers of the King, Abolished-Concluding Observations, 280
CHAPTER VIII.
THE STUARTS, CONTINUED.-CHARLES I.-FIRST  THREE PARLIAMENTS TO THE
PETITION OF RIGHT.
Introductory Observations-First Parliament-Charles's Speech-Tonnage
and Poundage Granted for One Year by the Commons-Illegal Collections of them by Charles-Hatred against Buckingham-Dissolution
of Parliament-Exactions and Forced Loans-Second ParliamentHaughtiness of Charles-Preparation of the Commons to Impeach
Buckingham-Commons Pass Supply Bills to be Granted when
Grievances have been Heard-Unconditional Supply DemandedCommons' Remonstrances-Impeachment of Buckin ham-Imprisonment of Diggs and Elliot-Abrupt Dissolution of Parliament-Renewed Exactions and Imprisonments-Expedition to Rochelle-Third
Parliament-Unconciliatory Speech of Charles-Complaint of Grievances-Sir Peter Hayman-Resolutions of the Commons-Address to
the King-The Petition of Right First Agitated-Charles Endeavors
to Prevent Discussion, offering His Royal Promise to Maintain the
Charters-Permission for a Bill Given-Speeches of Elliot and Coke
— Conference with the Lords-Their Proposition-Outline of the Petition-Charles's Ambiguous Assent-Clerical Politics-Dr. Mainwar* ing-Charles Forbids Censure of Ministers-Excitement in the House
Explanatory Message from the King-Regular and Final Passage of
the Petition of Right-Joy of the People,...    302
PETITION OF RIGHT,....        325




CONTENTS.                             11
CHAPTER IX.
CHARLES I.-FROM THE PETITION OF RIGHT TO THE GRAND REMONSTRANCE.
PAGB
Five Subsidies Granted to the King-Punishment of Dr. Mainwaring —Illegal Commission of Excise Cancelled-Remonstrance of the Commons
Concerning Tonnage and Poundage-Parliatnent Prorogued-Charles's
Speech-Reassembling of Parliament-Consideration of Grievances
and Outrages-The King Consents to Tonnage and Poundage as a
Parliamentary Grant-Further Irritations by the Star ChamberCharles Commands an Adjournment-Resistance of the CommonsTheir Protestation-Charles's Proclamation-Imprisonments-Dissolution-Remarks of Clarendon-Daring Proclamation by the KingProsecutions of the Imprisoned Members-Disregard of Habeas Corpus
by the Judges-Royal Exactions from the People-Feudal Oppressions and Forest Laws Restored-Ship Money-John HampdenCharles's Doctrine of MILITARY NECESSITY Sustained by the Judges in
an " Extra-Judicial Opinion "-The Short Parliament-Grievances
Considered-Supplies Demanded by the King-Answer of the Commons-Dissolution-The Long Parliament —Its Temper from the First
-Unanimity of Lords and Commons-Late Proceedings of the King,
and the Extra-Judicial Opinion of the Judges in Regard to Ship Money
Declared Illegal-Monopolists and Patentees Excluded from Parliament-Humiliation of the King-Tenure of Judges' Appointments to
be henceforth for Life-Act for Triennial Parliaments-Act to Prevent Sudden Adjournments and Dissolutions-Charles Gives up his
Claim to Tonnage and Poundage —Abolition of the Court of Star Chamber and High Commission Court-Ship Money, Forest Claims, and
Feudal Exactions Abandoned-Observations-Satisfaction of Reasonable Men Among the Commons —Welcome of the King in London on
his Return from Scotland-Puritanism,.         329
CHAPTER X.
CHARLES I.-THE REIGN OF PURITANISM-FROM THE GRAND REMONSTRANCE TO
THE END OF CONSTITUTIONAL LEGISLATION UNDER CHARLES.
The Grand Remonstrance Carried by a Puritan Majority of Eleven-Saying
of Cromwell-Different Opinions Concerning the Remonstrance —Its
Futility-Sketch of its Contents-Object and Determination of the
Puritans-Their Exasperation of the King-Royal Impeachment and
Imprisonment of' Lord Kimbotton and the Five Members —Declaration
of the Commons-Return of the Five Members-Separation of King
and Parliament-His Efforts at a Reconciliation —Implacability of the
Puritans —Bishops Removed from Parliament-The " Root and Branch
Bill " —Abolition-Militia Bill-The King Refuses His Assent-Message to the King from Parliament-His Answer-General ReviewPuritan Despotism-Cromwell,..... 351
CHAPTER XI,
CHARLES II.-THE RESTORATION.-ABOLITION OF THE FEUDAL TENURES.-HABEAS
CORPUS ACT.
England Under Cromwell-Reaction from-Puritanism at the RestorationTendency to Restore Absolutism-Moderation of the Royalists-the




12                           CONTENTS.
PAGE
Feudal Tenures-Former Efforts to Abolish Them -Their Final Abolition in this Reign —Habeas Corpus-Origin of the Name-Provision of
Magna Charta-Historical Sketch-Author of the Bill-Its Reproduction in the United States-Its Twelve Provisions-Its Importance —
Illustration from the Parallel History of France and England-Conclusion,.... 367
CHAPTER XII.
JAMES II.-THE REVOLUTION.-BILL OF RIGHTS.-ACT OF SETTLEMENT.
Preliminary Observations-The Exclusion Bill-Whig and Tory-Laws
against Romanists-Janies, at his Accession, Acknowledges their
Obligation-Supplies Granted by Parliament for the Term  of the
King's Life-James Insists on Supplies for a Standing Army, but Declares that he has Broken and will Break the Test Laws-Answer of
the Commons-Illegal Revival of the High Commission Court-Daring
Declaration of Indulgence Published by the King-Execution of itTrial of the Seven Bishops-Prince of Orange Lands —Flight of James
-Meeting of Lords and Commons and the Common Council of London-Convention at Westminster-Joint Resolution of Lords and
Commons-Settlement of the Crown on William and Mary-Substance
of the Bill of Rights-Act of Settlement-Its Necessity-Substance of
it-Conclusion,....  378
BILL OF RIGHTS,.......      391
ACT OF SETTLEMENT,...... 400
CHAPTER XIII.
COLONIAL CONSTITUTIONS.
Introductory Observations-Constitutional Position of the Colonists-Law of
Nations on the Subject of Colonial Settlements: in Countries having
Laws and Constitutions: in Countries not having Laws and Constitutions-Application of it to the Colonies-Their Interior Politics —
Provincial Establishments-Proprietary Governments-Charter Governments-Mixed Government-Constitutions of the Colonies-Virginia-Plynmouth Colonies-Massachusetts-New Hampshire-MaineConnecticut-Rhode Island-Maryland-New  York-New  Jersey —
Pennsylvania-Delaware-North and South Carolina-Georgia,. 403
CHAPTER XIV.
THE ANGLO-SAXON SYSTEM IN NORTH AMERICA-DISPUTE WITH ENGLAND-RIGHT
OF REVOLUTION.
Comparison of the Colonial with the Anglo-Saxon Settlements-Distinctness
of the Colonies and its Causes-Different Times of Settlement-Distance-Navigation Laws-Religious Animosities-Political Antipathies
-Necessity of the Revolutionary War-The New England Confederacy
-Nature of the Controversy of the Colonies with England-Claims of
the English Parliament-Opposite View of the Colonies-How Vindicated by the Present Colonial System of England-ObservationsForce of Circumstances in Compelling the Adoption of the AngloSa'xon System in America-The Right of Revolution-Founded in Nature-Object of Governments-The Doctrine of Consent-Revolution




CONTENTS.                             13
PAGIB
only Justifiable in Case of Tyranny or Usurpation- Objection to the
Right of Revolution on Scriptural Grounds-How Answered-Case of
Hezekiah-Revolution is Justifiable Politically only by Success-Prudentially by an Improved Government-The American Revolution
Justified Religiously, Politically, Prudentially-A Question,. 433
NOTE,...      444
CHAPTER  XV.
INDEPENDENCE.
First Congress of Colonial Delegates-Assertion of Rights —Non-Intercourse-Petition to the King-Advice to Massachusetts-Lord North's
Motion Rejected-Adjournment of Congress-Its Proceedings after
Reassembling-Debate on the Proposition to Declare the Independence of the Colonies-Committee Appointed to Draft a Form of Confederation-Further Steps towards the Adoption of the DeclarationIts Final Signature by the Members of Convention —Matter of the Declaration-Whence Derived-Its Legal and Constitutional Effect-Its
True Grandeur,.... 448
THE UNANIMOUS DECLARATION  OF THE THIRTEEN UNITED STATES OF
AMERICA,.. 461
CHAPTER  XVI.
CONFEDERATION.
Committee on Confederation Appointed before the Declaration was Adopted
-Its Report-Debate on the Plan of Confederation-Proportion of Taxation-Remarks of Mr. Chase-John Adams-Mr. Harrison-Mr. Payne
-Dr. Witherspoon-Debate on State Votes in Congress-Remarks of
Mr. Chase-Dr. Franklin-Dr. Witherspoon-John  Adams-Mr.
Hopkins-Mr. Wilson-Adoption of the Confederation-Its Value,   467
ARTICLES OF CONFEDERATION,...              478
CHAPTER XVII.
ADOPTION OF THE CONSTITUTION.
Circumstances under which it was Adopted-Constitutional Position of the
Colonies after the Declaration-That of Limited or Constitutional Governments-Independent of each other-Yet United-Distinction Between a Consolidated and a Federative Union-Weakness of the Confederation-Financial Difficulties-Difficulty in Making Treaties of
Foreign Alliance-Proposition in Congress-Call of Virginia-Convention at Annapolis-Its Report to the Legislatures-Congress calls upon
the States to Send Delegates to a Convention-Importance of the
Phraseology of the Call-Assembling of the Convention at Philadelphia-Parties in the Convention-The Monarchical Party-The Large
State Party —The State Rights Party —Propositions of Mr. Randolphof Mr. Charles Pinckney —of Mr. Patterson-Of Colonel HamiltonTwenty-Three Resolutions of Convention with Dates of their Adoption
-Debates on the Third and Fourth Resolutions from Luther MartinEqual Division of the Convention on the Subject of Representation in
Congfress-Conference —Compromise-Draft of Constitution Reported
-Omission of the Word National-The Reason-the Revised DraftOmission of the Names of States in the Preamble-The Reason-Seces



14                           CONTENTS.
PAGB
sion of States from the Confederation-Unanimous Adoption of the
Constitution in Convention-Its Reception by Congress-Ratifications
by the States-Act for Putting it in Operation-Washington Elected
President-Imperfection of the Constitution as Adopted-Declarations
Made and Amendments Offered by the States —Massachusetts-New
Hampshire-South Carolina-Virginia-New York-Rhode IslandTwelve Amendments Proposed by Congress-Ten of them Accepted
by the States-Value of the Amendments-The Eleventh Amendment
-The Twelfth-Concluding Observations,.        489
CONSTITUTION OF THE UNITED STATES OF AMERICA,...    527
ARTICLES IN ADDITION TO, AND AMENDMENT OF, THE CONSTITUTION OF THE
UNITED STATES OF AMERICA,..... 540
ADDENDA  TO  PART SECOND.
LOCKE ON GOVERNMENT.
Objects of Government-Arbitrary Power Compared with a Government of
Laws-Consent and Force-Conquest-Right of the Conquered-Limits
of the Right which can be Obtained by a Rightful Conqueror-Over
His Own People-Over the Vanquished-The Latter Despotical-But
not Universal in its Extent-Not Including the Property of the Vanquished, which is his Children's-But only the Lives of those Actually
Engaged in War-These Propositions Logically Discussed-Right of
Rebellion Reserved to the Conquered even after Forced Consent to the
Victor's Authority-This Right an Indefeasible Inheritance of their
Posterity-Case of the Greek Christians-Summary-Case of Hezekiah
-Arbitrary Rulers put themselves into a State of War with the People
— Thereby Absolving them from Allegiance-The People not Disposed to Revolution-The Right of Revolution and Rebellion-When
it Exists-Objections Answered,...46
BURKE ON THE AMERICAN WAR.
Exordium-Occasion of the Speech —Magnitude of the Task of Restoring
Order in America-Burke's Proposition is "Peace not Through the
Medium of War "-" It is Simlply Peace "-With the View of Restoring Confidence and Procuring Reconciliation-The Questions at IssueOught Concessions to be Made?-If so, What Concessions?-Position
of the War Party-Objections-Advantage Gained by Force Temporary —America must be Destroyed in Preserving it to EnglandExperience against the Use of Force-American Temper and Character-The Spirit of Liberty-Working of Colonial GovernmentConduct of the Government towards America-Means of Reconciliation-the Causes of Discontent must be Removed-Impossibility of
Subjugation-Infamy of the Attempt-Unfitness of England for the
Task-The American Character Fixed and Unalterable-Spirit of the
Southern Colonies-Slaves-Proposition  of Criminal Prosecutions
against Rebels-" Too Big a Thing "-Definition of an Empire-Inference-Judicial Position of England-Her Consequent Duty of Justice-What had been Gained by the Measures of the Government?
What Concessions ought to be Made-Complaint of the ColoniesTaxation without Representation-Duty of Government-Necessity of
a Unity of Spirit-The Colonies must be Protected by the Constitution
-Example of Spain-Precedent of Ireland-Wales-Chester-Durham-Excitement of the American Mind to be Considered and Allowed for-Effect of Reconciliation,.....  58




PART FIRST.








CHAPTER I.
FREE GOVERNMENT-ITS CHARACTER AND OFFICE.
IT IS A STATE OF LAWS-THE BRITISH SYSTEM-ITS RIGID ENFORCEMENT-THE
UNION AN ELECTIVE SYSTEM-ITS ELECTIVE PRESERVATION-ITS POPULAR
FAILURE-ORGANIC LAWS-THEIR OFFICE-CERTAIN RIGHTS OF PERSON NEVER
ENTER INTO GOVERNMENT-TOO MUCH POWER A SOURCE OF WEAKNESS.
IT would seem to be an easy task to arrange a just system of
relations between government and people; certainly so on the
basis that the former is an agency created by and for the sole benefit, advantage, and protection of the latter. In theory, this is the
purpose and end of every description of polity, the public good being
the grand objective point to be reached.
The application of this principle, in the creation and maintenance of government, in different countries, has produced widely
different forms of administration. This is neither paradoxical nor
illogical, any more than it is illogical in the physician who varies
his remedies to suit the constitution and overcome the peculiar
malady of his patient. Precisely so it is in the institution of government. What is suited to one people, is evidently unsuited to
another.
In discussing the principles of free government, it would be unfair to test their practical benefits, by reference to the history of
those nations where free speech and a free press have been the
mere dreams of enthusiasts. With rare exceptions, the laws of
any named people will be found to express just what is best adapted
to their necessities, and indicate the true state of popular intelligence of the country;-in other words, what may be the very best
government for one nation, may be the worst for another. This is
simply the adaptation of means to ends.




18                   FREE GOVERNMENT.
It has been very much the habit of public writers, on both
sides of the water, to draw conclusions concerning matters of government, from the operation of certain systems of administration,
which have been found to work admirably in specified countries,
without taking any account of the peculiar political habits of the
people, their intelligence, or the character of their religious opinions. Hence it is that the French, always the most prosperous and
successful under absolute government, are convinced that imperialism is better than republicanism-that the will of one man is better
than the laws of many.
The English, on the other side, are equally certain that their
free system of laws is the perfection of wisdom.
They are, in our judgment, both in the right.
The British government expresses a far higher intelligence on
the part of the people, more complete and defined notions of personal rights and liberty, more dignity and nationality, than that
of the French. It has elicited, in its establishment, more mind,
and involved vastly heavier personal sacrifices. It is a state of laws
-a state in which individualism no longer exists as a governing
power-in which the law is supreme.
If we take any account of the ambitions of men, we must admit
that the creation of such a system is a most wonderful achievement.
It may be doubted, indeed, if any other people have encountered
so many difficulties in the creation of government as the English.
We know of no other where classes are so distinctly marked-the
high, the middling, and the low; as there is no other, where, under
the laws, classes are so absolutely obliterated, where laws, not individuals, have such supreme control.
It will be admitted that a state of laws, so established as to secure public tranquillity, and maintain the rights of person, against
the encroachments of influence and individual power, and of the
state itself, is the best civil polity. This is precisely what we understand to be the British government. It has had a slow, but sure
and healthy growth. Unlike the government of the Union, which
consists of a simple compact of independent States, covering a few
specified interests, created, as it were, by a body of representatives,
commenced and ended in a day, that of England has been the pa.




ITS CHARACTER AND OFFICE.                   19
tient work of many centuries, its progress evolving principles of
freedom, which had to be won by battle and by argument. It is a
singular feature of British history, that the people have never taken
a step backwards.  Often checked in their onward course, slow to
secure obvious rights of person and property, obstructed or crippled
by the hand of power and ambition, they have, through every trial,
vindicated their grand purpose to establish a free system of laws, and
make thenm supreme, at all times and in every exigency, over individuals. This is the distinguishing feature of all free government.
It is common to maintain that this species of polity, being in its
nature more stately and inflexible than absolute government, is ill
adapted to meet and overcome great trials and difficulties. It is
urged that while it is admirable in peace, economical in administration, and effective in rule, in the ordinary affairs of life, it is
cumbrous, heavy, slow, and expensive, in periods of peril or civil
commotion. This argument goes to the main question-to the very
power of any people to maintain free government on any terms;
for a state is clearly worthless, and something worse, if it has not
the capacity, energy, and patriotism necessary to sustain its own
life in hours of peril. If what is called a government of laws, is
incapable of doing this, without invoking the discretionary powers
of individuals-without, in other words, substituting the will of the
latter for the inflexible rule of the former, it follows that it is a
radical and mischievous error.
It is far better, under every description of government, to rely
upon the enforcement of laws, than to trust the wisdom of persons,
however honest, in times of civil commotion. It is hardly possible,
at such periods, to find individuals to rule, who do not enter upon
their work as partisans; and it is more than has been found safe,
in this country, to trust this class of persons in time of peace, much
less should they be trusted with administrative discretion, in war.
Those who maintain the necessity of this rule under any circumstances, are no friends of constitutional government.  It is a
sort of appeal from free institutions to absolutism-from the government of the many to that of the few; a resolution to abandon
the organism of the state in favor of a few persons in authority.
It is no answer to this statement to say, that individual govern



20                   FREE GOVERNMErNT.
ment proposes to lay aside only a limited portion of the written
law. It is not the extent of the change, but its character, its nature, to which we object. The authority to alter constitutional
covenants is lodged in the States, which must act in strict obedience to the organic law. Statute laws, State and federal, come
within the legislative authority. It is now proposed to ordain a
third estate, giving or conceding power to persons in charge of
affairs, under the constitutions and laws, to alter, modify, or annul
the one for the time being, and disregard the other. This, we
take it, is authority, in point of fact, to ordain a new government.
It will not be maintained that we have adhered, in strict fidelity, even in the ordinary administration of the Government, to the
Federal Constitution. In more than one instance, we have, as a
people, sanctioned the complete surrender of fundamental rules,
and given the full force of law and the indorsement of majorities
to measures which were utterly incompatible with the peaceful
maintenance of the National Government.
The Missouri Compromise is one of these-a law which ordained
and established disunion —which distinctly recognized the separate
existence of a political North and a political South; a law which
created, as far as it could do so, two governments, permitting
certain things to be done in one, which it prohibited in the other,
thus ordaining positive inequality between citizens of the same
common country.  We allude to this matter, not to discuss it, but
to show the tendency of our people, in time of peace, to disregard
or overlook the Constitution of the United States as the supreme
law of the States over the interests delegated to the Union.
Whether that compact was absolutely perfect or not, it is certain
that the least departure from its provisions was not only unjustifiable, but fatal to the whole scheme of government, of which it was
the only law. If, in other words, it was not supreme to the extent
of preventing even compromises, by any other than State action,
which violated its covenants, it was no law at all. If it had no power
to vindicate itself against the action of majorities or even absolute
unanimity, on the part of the people, except in its own prescribed
way, then it follows, that, instead of a constitutional government,
we had a purely democratic majority government. The real law




ITS CHARACTER AND OFFICE.                  21
of the Union was not the Constitution, but the will of greater
over lesser numbers. The recognition of the right to give force
to laws, made in contravention of the fundamental law of the
Union, concedes at once the right of the people, without reference
to the States, to alter, modify, or annul the latter, at pleasure.
Of course, in such case, the government is a democracy, under which
minorities have no rights, and majorities are supreme.
Our career as a nation, though short, is full of evidence that
however-perfect may have been our theory of self-government, we
have, after all, understood little of its practical philosophy.  We
have had a broad and a rich field; but our husbandry has been
sadly defective, our labor misapplied, and our productions meagre
and unsatisfactory.
Our failure, for such it is, may be accounted for, by a simple
reference to one or two leading features of the national mind.
Self-reliance is a great virtue when kept within reasonable bounds.
It quickens invention, stimulates industry, widens the channels of
enterprise, and gives energy and force to those who possess it.
But like every other good quality it is liable to run into excess-to
become swollen into such inordinate vanity as to reject the lessons
of experience and all the counsels of history. It is folly to seek
to conceal this turn of an excellent characteristic of the American
people. The great evils of its existence and dominion, at the
present moment, are too obvious, damaging, and pervading, to
admit of either extenuation or justification.   It is the dominion
of self-conceit over wisdom and patriotism.
It is no answer to point to the industrial successes of the people,
during the period of what we call our national existence; for these
very triumphs of labor indicate far more the source of the evils
referred to, than prove our capacity to maintain the government
under which they were achieved.  It is better at once to admit
that we are indebted to exemption from  trials-that our great
success has resulted from the absence of political disturbances,
rather than from ability, by strict adherence to fundamental principles of justice and freedom, to manage and control them, when
they arise. Until recently we had been called upon only to overcome trifling disturbances. No great, disintegrating elements had




22                   FREE GOVERNMENT.
before presented themselves.  We had an elective system, embracing exclusive elective remedies.  This was the corner stone
and foundation of the political edifice. It embraced no other principle, touching the matter of its creation, existence, or maintenance.  It was indestructible, too, so long as this principle should
have sovereign control in its administration.  The exclusion of
the ballot, in-the adjustment of differences, under such a system,
was the abandonment of the Constitution-the practical abdication
of government by the people, and the installation of another kind
of government, by irresponsible men.
In point of fact, we have signally failed, on the first great trial,
to maintain free government. What is now of greatest interest, is
to ascertain, if possible, the cause of this failure, which must be the
source of our greatest weakness.
A review of the past and present position of the States and
Union, it seems to us, discloses this striking defect:
Ignorance, on the part of the people, of the real office and what
is necessary to maintain a free system of laws; or non-appreciation
of the necessity, at all times, of maintaining the supremacy of the
laws over individuals.
It would be difficult to find testimony more complete, in support of this suggestion, than that which the present National
Administration has presented, within the short period of its rule.
Starting with the open declaration that the public exigencies
demanded the removal of all legal restraints, its measures, from
that time to the present, have, in no material respect, been made
to conform to the Federal Constitution. It is due to candor to say,
however, that both Congress and the people have distinctly approved, and, as far as their action could do so, justified, the annulment of the organic law and the substitution of the will of the chief
magistrate, as the governing power of the country. In other words,
if the President violated the Constitution and the rights of persons
and property, his criminality is no greater than that of the people,
who either indorsed, or gave a qualified assent to, all his acts of
usurpation. The offence, in this way, was compound. There was
no other process so sure to ruin the President, on the one hand,
and the institutions of government, on the other.   No man could




ITS CHARACTER AND OFFICE.                 23
withstand such temptations, and no system of laws such a terrible
shock.
We deem it unnecessary to point to the public records of the
country, to show that we have not drawn our conclusions from an
imaginary condition of public affairs.  The announcement, by the
President, of the imperial power of war, under his exclusive control; his suspension of the writ of habeas corpus; his abrogation
of many provisions of the Constitution, trial by jury, free speech,
the press; his wilful confiscation of estates; his new law of
treason; his emancipation; his assumed jurisdiction over all the
people, even to their expulsion from the country by military
force, are surely enough to justify what we have said.
Granting that the highest motives of patriotism governed him,
it makes nothing in his favor, as a political trustee, under defined
powers; for there was nothing but the Union to save, and there
could be no legal agency employed in the work other than those
ordained by the States.
The States had ordained a limited, but perfect government of
laws, to be maintained by them, within the sphere of its authority.
It was fearfully menaced, not by mere casual disobedience, but by
organic, internal convulsion.
Its authority was openly set aside by large and influential
States, four of which were original parties to the Union. Our duty
was a plain one-to vindicate the laws within the scope of the authority of the Constitution, and by its appointed agencies.
There could be no other vindication; for the instant we transcended this limit, no matter with what motive, we became assailants, not defenders of the Union. If the latter provided one remedy
for a certain political disease, and we failed to employ it, and substituted another, it follows that we would not trust the law nor wait
till we could modify it in obedience to prescribed forms. We preferred to rely upon the discretionary power of public agents.
This is a plain proposition. The Union, based entirely upon
living governments, existing purely under written laws, was incapable of admitting into it the least discretion, as it was impossible to maintain it on any other than an elective basis. Force was
as foreign to its maintenance as to its ordination.  It is believed




24                   FREE GOVERNMENT.
by many, that it never could have been permanently ruptured without force, and by more, that it can never be restored with force.
Force is personal discretion, the law of individuals, in direct antagonism to the written law. The British Constitution, as it is called,
though its powers and prohibitions are sufficiently defined by various royal charters and parliamentary declarations, is what may be
termed a system of political common law-a sort of prescriptive
government-the result of a most protracted effort on the part of
the people to secure their rights as freemen. There is no pretence
of equality, as that word is now understood, in it. The people are
not born equal, unless we mean that they have an equal right to
breathe the air, to speak their sentiments, and enjoy the blessings
of liberty. The foundations of the British Government were all
laid in absolutism, from which has been raised its superstructure of
laws. From  one man it has grown up to be every freeman of the
kingdom. From allegiance to that one man, it is now allegiance to
laws. So it is in the United States. Yet the two systems widely
differ in structure and administration. It took many centuries, involving vast sacrifices of persons and property, to achieve the present Constitution of England,'while that of the United States was
the work of a few days-the work of States, as free as the Empire
of England. We have been parties to both systems. When we
separated from our great ancestors, we dissolved all the political relations subsisting between us, but retained everything else. Their
experience was ours. Their knowledge was ours. Their martyrs
to liberty, all their lessons of adversity in struggling for a free system of laws, their hostility to military power, their language, their
literature, their ancient love of freedom and independence, were
ours.  The States combined to effect their separation.  When this
was achieved they stood before the world as thirteen nationalities.
They subsequently ordained the Union, not by sinking their nationalities, but by creating a government of States-a government
of independent authority over individuals within the scope of
the powers delegated to it by the States, but in nothing else. This
is seen in the act of confederation, and in the fact that it is a government of States. It contains not one dynastic element, not one grant
of discretionary authority to its representatives.  This was the




ITS CHARACTER AND OFFICE.                   25
principle and the policy of its creation, for the obvious reason that
its constituent parties maintained, respectively, perfect civil institutions.  The latter embrace quite all the concerns of life.  The
relations of husband and wife, parent and child, guardian and ward,
the collection of debts, the settlement of estates of deceased persons,
the tenures of real property, the punishment of crime, the maintenance of the poor, education, charitable institutions, the authorization of corporate bodies, local municipal police, and a hundred other
matters of familiar life, come within the scope of the State governments.
It is illogical to claim that these living governments, which created the Union, which confer upon it all the machinery of administration and all means for its maintenance and support, are in any
sense subject to the discretionary power of individuals.  Such a
conclusion might, possibly, be admissible under a concrete system,
but it is clearly inadmissible under that of the Union.  Its agents
are all elected, directly or indirectly, by the people of the States, in
obedience to their respective laws.  There is not one approach to
it, except through the States. They make its president, its legislature, and, indirectly, its judiciary.  They give up their citizens to
constitute its army and navy. Without them, it is nothing. It is the
law, and the only law, of their being. They are its constituents, not
as a people, but as so many independent nationalities.
It requires but a moment's reflection to see that, under such a
system, the laws must, at all times, be supreme over individuals.
It is unquestionably better that it should be so in every government, but absolutely necessary under this, for the obvious reason,
as we have stated, that the Union is the law of the States and not
of the people.
Exactly the opposite of this theory of the Union has been its
administration during the last three years.  Its law  has been
treated as a cumbrous, heavy weight, and its strict maintenance
punished as treason to the Government. Patriotism has been made
to consist in upholding the action of persons in direct opposition to
it. Those who would show the least regard for its obligations and
the greatest contempt for its solemn injunctions, have been most
honored and trusted.
2




26                   FREE GOVERNMENT.
We have passed through years of great political trial.  The institutions of the country have been put to a severe test indeed. It
was not enough that we should meet and overcome the military
force which assailed and sought to overthrow them.  We had a
character as a free people, as well as a government of laws, to uphold. We could not sustain the latter and give up the former.
Our enemies are those who violate our laws, who set aside the Constitution, no matter on what pretext.  Our institutions were put
upon trial. Their practical utility must undergo the terrible test
of a widespread civil war. The question was, whether the laws
should prevail over the illegal and treasonable action of individuals.
We must determine not only who are the open, but also the concealed
enemies of the Union. He is quite as much an enemy who transcends the authority of the Union, professing to sustain it, as the
rebel who openly defies its authority. We have no right to make
war for anything else than the enforcement of the laws, as we have
no right to punish rebels for anything else than their violation. If
we do not ourselves know what our institutions are, or, what
amounts to the same thing, permit public agents to modify them at
will, then it is clear that we cannot determine what is loyalty on
the one hand or treason on the other.
WVe are confident that our political bankruptcy is due, not to
the defects of our institutions, but to the dominion of great popular
errors, which have made it impossible, for the moment, to say.
whether/the Administration at Washington or Richmond have done
us most harm.  Pride, ambition, and ignorance have ever warred
against free government. What we have said of these passions in
England is quite applicable to us. The English people have repeatedly done just what we are doing-and they have done again
just what we shall yet do-they have vindicated the supremacy of
their free system of laws over all personal discretion.
In this view, our comprehensive and damaging mistakes and
omissions, during the present war, may be charged to non-appreciation of what was required of us rather than to defects of our system, or inability or indisposition to maintain it in all its legal force
and integrity.
Good practical government may unquestionably exist, embra



ITS CHARACTER AKND OFFICE.                 27
cing freedom of speech and of the press and the largest measure of
personal liberty, without a Constitution, Magna Charta, Bill of
Rights, or any such law as the Habeas Corpus Act. So it is possible
to maintain order, for a limited time, without the aid of civil
institutions of any kind.
The general tendency of all self-governed communities is sufficient, under ordinary circumstances, to assure not only public
tranquillity, but to enforce the rights of persons and property.
Governments are ordained not alone to secure these ends, but so
constructed as to be able to meet and overcome great trials and
difficulties. To assure this, with greater certainty, organic laws
are enacted.  These laws govern the corporate body, just as
statute laws govern the magistrate and the people.  They are said
to be supreme laws, not because they are irrepealable or indestructible, but because they are supreme over all the agencies of government, whose powers they define, whose duties they enjoin, and whose
jurisdiction they determine. They are supreme over the executive,
the legislature, and the judiciary. They constitute an official chart
which should be ever present in their deliberations and ever control
their action.
It is their office not only to direet what may be done, by the
law-making, the executive, and judicial power, but, through the lastnamed department, declare what shall not be done —to command and
to interdict action.
In addition to these obvious intendments of the organic law,
it is one of its chief offices, in a free government, to define what
interests and things shall be exempt from the operations of the polity
— what, in the language of the Federal Constitution, "shall be
reserved to the States respectively or to the people."
For instance, free government, being ordained exclusively in
the interest of the people and for their protection in person and
property, can never rightfully gain jurisdiction over either, except
for the punishment of crime.  The sacrifice of either, on any other
ground, is sufficient to show that its ends have been perverted, and
that, instead of a government of laws, it is a system of robbery,
arson, murder, and personal aggrandizement.
Government is rightfully limited to the accomplishment of




28                    FREE GOVERNMENT.
certain ends, all of which must accord with the public good and
advantage.  These are its only legitimate mission.  It is certainly
not necessary, in the maintenance of such a system, to take the
property or interfere with the liberty of persons of the commonwealth.  It is the right of every well-conducted citizen to say and
publish what he wills, being always responsible to injured persons
for the abuse of this right. He is never responsible to the Government, for any such abuse, because the policy of the state demands the
utmost liberty of speech and the press. This is not only essential
to the integrity of its administration, but it is that which has
always been admitted to be the very soul of our institutions.
These institutions signify general discussion, criticism, and condemnation. They are the product of free inquiry and speech. To
admit the right to suppress either, would be exactly equivalent to
the suppression of the Government. The silly pretence set up that
it is necessary to keep them within reasonable bounds by political
agents, is an impeachment of the laws for the protection of persons,
because persons alone have a right to complain. The Government
itself cannot be injured, except on the hypothesis that the agent
for the time being is the state.
But we go farther than all this. The right of free speech and
a free press is absolute, with or without constitutional guarantees.
It is exempt from the operation of the polity-beyond its jurisdiction.
No people in ordaining civil institutions are authorized to trench
upon this right.  It is original and inalienable.  The cause of
good government, of morality, religion, and human progress, forbids
that it shall ever, under any possible circumstances, be surrendered
by the people.  It is their birthright, their weapon of defence
against aggression and wrong. W11ithout it they are subjects, not
freemen. They have no right to yield up this natural gift of a
beneficent God, because it is inalienable, and for a better reason,
because no people have a right to go from light into political
darkness.
The Federal Constitution, we repeat, was framed on this theory.
It expressly declares that the powers not delegated to the Union
are "reserved to the States respectively or to the people."  The
latter portion of this clause bears no other signification than the




ITS CHARACTER AND OFFICE.                   29
reservation of certain rights, ordinarily embraced in political governments, "to the people."  These include exemption from  arrest,
except for crime, to be determined by judicial authority; all rights
of property; perfect religious freedom; free speech and a free
press. The States of the original confederation, without a single
exception, recognized these rights as beyond their legal jurisdiction.
The safeguards thrown around them in the Amendments to the Constitution, evince alike distrust of Federal agents and a determination to protect them.
It will be found, we apprehend, under every description of polity, that the recognition of this principle would not only impart stability to the state, but be the source of its greatest social, industrial,
and intellectual progress.
It is said of the common law, that it is the perfection of reason.
If so, it is because its authors have treated all subjects of investigation in absolute freedom. In this spirit it is time to investigate not
only what are the legitimate ends and mission of government, but
what interests should be reserved from its operations. These reservations or limitations, we imagine, will be seen to be far more important matters and more effective guarantees of stability, strength,
and efficiency, than its positive grants.  It is nothing more than the
simple recognition of the well-established principle, that power is a
source of weakness as well as strength. When unlimited, it is apt
to degenerate into licentiousness, and thus make an enemy of one,
on account of its moral failings, and of another, by reason of its
illegal oppressions. It is seen, in practical life, which is the only
test of usefulness, to be just as necessary to withhold as to confer
authority upon government. We refer, of course, to a free system.
Now, while the Federal Constitution is an open record, defining
every power that may be exercised; expressly reserving certain
rights of person and property; prescribing, in numerous cases, the
mode of prosecution for offences, and measuring the extent of punishment, as for treason; declaring what magistrates and others shall
do to gain jurisdiction of alleged offences, is it not true, from whatever motive, that quite all these provisions of the law have been
either disregarded or annulled, for the time being, by the Adminis.
tration? Let us see:




30                  FREE GOVERNMENT.
Trial by jury has been habitually denied.
Persons have been arrested and imprisoned by military authority, in utter disregard of the Constitution.
Private property has been taken for public use, by military
orders.
Freedom of speech and the press has been suppressed by like
orders.
Property has been confiscated by legislative and executive
authority, in utter violation of the Constitution.
Persons have been seized, tried by military commission, and
transported beyond the jurisdiction of the States, by express order
of the President.
The privilege of the writ of habeas corpus has been suspended,
in the loyal States, and all the machinery of martial law put in
operation throughout the whole Union.
The United States have been transformed by these measures into
a purely military government, and the civil authority everywhere
subjected to the arbitrary orders of the commnander-in-chief of the
army and navy and the militia, in actual service.
This array of treason to the Union and to every principle of
free government, embraces only the most prominent offences committed against the constitutional authority of the United States by
the people's representatives. They are, too, not only avowed and
continued by the ministers, but were explicitly indorsed and justified by the Republican National Convention at Baltimore. They
stand, then, as their settled maxims of government. It is claimed
that these proceedings have been instituted in aid of the Constitution.
Lord Brougham, speaking of the proposed suspension of the Habeas
Corpus Act, in 1817, says:
" It is said by those who now call for the suspension of the Habeas Corpus Act, that in times of danger the Constitution requires
support.  I beg leave to protest against this doctrine.  The Constitution of England is not made merely for fair weather, and if it
cannot defy and outlive the storm, it is not worth preserving. If
this measure is unfortunately passed, I hope never again to be compelled to listen to the pharisaical cant of how much happier and
more free the subjects of this country are than the nations by whom




ITS CHARACTER AND OFFICE.                  31
they are surrounded; for what does the suspension of the Habeas
Corpus Act prove, but that the Constitution of England is of no
use, and the liberty of England of no value? "
We allude to this subject, not to discuss the character of the
existing Administration, but to show how necessary it is that a
free system of laws should be restricted in the exercise of powers, in
order that it may command the confidence of the people, without
which it cannot and ought not to be successful. This confidence is an
outbirth of freedom, and a vital element of all social, political, and
industrial progress.  But it can never be attained, in this country
or in England, except on condition of the entire protection of person and property. A failure to do this, from whatever cause, is a
compound offence here; an offence against the States, against the
citizen, and against the legitimate government of the Constitution.
It is due to candor to say, that the people of the United States,
though sincerely attached to a free system of laws, entertain very
questionable ideas, upon a single point, at least, in reference to what
should constitute such a system. They admit the right to ordain a
constitution, conferring unlimited authority upon the legislature to
enact and enforce such laws as their constitution may permit or
command. This we hold to be a radical and damaging error.
There is no right, surely, in the people, in framing government,
to do more than is absolutely necessary to be done, in order to put
into operation a perfect system of laws. For instance, trial by
jury, by its long and beneficent agency, has become an essential
feature of free government-a sort of vested right, which persons
charged with offence may invoke, and which there is no power in
the state to withhold. Freedom of speech and the press, the rights
of the habeas corpus, and the subordination of the military to the
civil authority, and many other interests of the same nature, are
necessary elements of this species of government. They are rights
which the citizen cannot be called upon to surrender, for the simple reason, that jurisdiction by the state over them would add
nothing to its strength or efficiency, but take much from both.
Military authority, in the United States, is purely ministerial in
its nature. It may enforce laws in certain cases, ordained by competent authority; but it can never, under any circumstances, exer



32                   FREE GOVERNMENT.
cise legal jurisdiction over either persons or property, outside of the
military service. There is no authority, in Congress or the President, to confer such jurisdiction.  The existence of war adds
nothing to its legitimate powers in this respect. Whenever and
wherever it has done so, it has committed a flagrant violation of the
Constitution, and a more flagrant and damaging assault upon the
character of the American people.
We hold the latter to have been, in this way, its most serious
and injurious offence.
To the American people had been committed, more than any
other, the great trust of maintaining a free system of laws. We
had promised more and accomplished more in the short period of
our national existence, than any other people. It was here that
labor received its highest reward, that genius and invention
achieved their greatest triumphs, that education was most widely
disseminated; and it was here that freedom, peace, and prosperity
had made their cherished home.
We had done more as a People than as a Government.
It is thus seen that the domination of the military power is something more than a mere political offence.  Our estates are not all
made up of civil institutions.  When we gave up those institutions
we surrendered the greatest name as a People, the highest dignity
and the noblest mission ever organized by freemen. It was a sacrifice so complete that, from being the first people in all the world,
in character and works, we became the last in practical freedom
and political wisdom. This fall is due exclusively to the fact that
we have tamely surrendered the dominion of laws to a wanton military rule.
We had a mission to fulfil as well as a state to maintain.
Separated from the great governments by an impassable barrier,
which protected us through all the stages of our early career, we
had grown to colossal proportions, with ample power to vindicate,
by arms and by labor, the free system of laws which we had adopted for our government. We had advanced so far that our example became an eloquent and powerful assailant of absolutism
everywhere, while it conveyed to every people unquestionable proof
of the capacity of man for self-government.




ITS CHARACTER AND OFFICE.                  33
Without a thought of active intervention with the local politics
of others, we had declared, in the name of the people, that hostile
European colonization on this continent would in no case be permitted.  This was no more than a legitimate expression of our
political system. There was nothing of menace or presumption in
it. As a measure, it was timely and regular. Europe had combined at Vienna, to declare to the world that her people should in
no case recognize free institutions.  England had joined in this
decree of exclusion. If Europe could rightly interdict free government on the other side of the water, we certainly could interdict absolutism on this. There was as much moral and legal weight
in our ideas as theirs. They addressed us, it is true, through their
governments, while we addressed them as a people.  We listened
to them because we knew they had power to enforce their decree;
they listened to us because they knew we had power to enforce
ours.
So long as we remained true to the principle which gave us
that power we were potential and unconquerable; when we abandoned that principle and practically adopted that which governed
the Congress of Vienna, we became weak and contemptible. This
abandonment stands to us as a subjugation by a foreign power. It
is not armies alone, commanded by Frenchmen or Germans, which
constitute foreign invasion. Whatever is not indigenous to our
institutions, whatever partakes of absolutism, is utterly foreign to
us in a political sense.  We care not where a ruler comes from, if
his will, instead of our law, is to govern. Abraham Lincoln is a
foreigner to us, when he rules in opposition to the Constitution of
the United States.
NOTES.
The Constitution and its Dangers.-Lord Brougham, in the House of Commons, June 23d, 1817, says:
"It is now reckoned childish or romantic to profess any veneration for the
Constitution of the country, or respect for popular rights. My honorable friend
2*




34                       FREE GOVERNMENT.
(Sir S. Romilly) has been taunted with romance for defending its general principles; but I will say, that, if it is a romance, it is a romance which has given us
all the advantages which those who know not their origin cannot overlook. It
has made us the admiration and envy of our neighbors; and by frequent derelictions of it, like the present, we shall soon cease to be the only free and happy
country in Europe, or in the world. If the house thinks to do its duty to the
country by agreeing to every unconstitutional measure at the bare suggestion of
the minister-if you think you will be doing your duty to your constituents by
refusing to investigate their complaints, and by rushing headlong, without inquiry, into every measure which is recommended against them-if the new doctrine of confidence in ministers, whoever they may be, obtains, I should then
say that it is a matter of little consequence in which form the constitution
exists-the substance is gone. It is plainly avowed that it is fit only for fair
weather-to be got rid of as soon as a storm arises —and that the rights of the
people of England are not to be held even during their good behavior, but at the
good will and pleasure of the ministers of the crown."-BROUGHAM'S Opinions,
p. 96.
" I know that the general answer to all that has been hitherto alleged on this
subject is that martial law had been proclaimed at Demerara. But, sir, I do not
profess to understand, as a lawyer, martial law of such a description; it is entirely unknown to the law of England. I do not mean to say in bad times of our
history, but in that more recent period which is called constitutional. It is very
true that formerly the crown sometimes issued proclamations, by virtue of which,
civil officers were tried before military tribunals. The most remarkable instance
of that description, and the nearest precedent to the case under our consideration, is the well-known proclamation of the august, pious, and humane Philip
and Mary, stigmatizing as rebellion, and as an act that should subject the offender
to be tried by a court martial, the having heretical, that is to say, Protestant,
books in one's possession, and not giving them up without previously reading
them.
"Similar proclamations, although not so extravagant in their character, were
issued by Elizabeth, by James I., and (of a less violent nature) by Charles I.,
until at length the evil became so unbearable that there arose from it the celebrated Petition of Right, one of the best legacies left to this country by that illustrious lawyer Lord Coke, to whom every man who loves the constitution
owes a debt of gratitude, which unceasing veneration for his memory can never
pay.
"The Petition declares that all such proceedings shall henceforth be put
down; it declares that'no man shall be forejudged of life or limb against the
form of the Great Charter,' that'no man ought to be adjudged to death but by
the laws established in this realm, either by the custom of the realm, or by acts
of Parliament;' and that'the commissions for proceeding by martial law should
be revoked and annulled, lest, by color of them, any of his majesty's subjects be
destroyed, or put to death contrary to the laws and franchise of the land.' Since




ITS CHARACTER AND OFFICE.                        35
that time no such thing as martial law has been recognized in this country; and
courts founded on proclamations of martial law have been wholly unknown. And
here I beg to observe that the particular grievances at which the Petition of
Right was levelled were only the trials, under martial law, of military persons,
or of individuals accompanying or in some measure connected with military persons. On the abolition of martial law, what was substituted? In these days a
standing army in times of peace is considered a solecism in the constitution.
"Accordingly, the whole course of our legislation proceeded on the principle
that no such establishment was recognized.
" Afterwards came the annual Mutiny Acts, and courts martial, which were held
only under those acts. These courts were restricted to the trial of soldiers for
military offences, and the extent of their powers was pointed out and limited by
law."-lbid., 220-222.
Trial by Jury.-" The jury are sometimes right when the judge is wrong.
Judges themselves sometimes admit that they took, what they afterwards found
out to be, a wrong view of the case, while the jury took a right one; and how
can it be otherwise than a frequent case? One may be very excellent for deciding a point of law; nothing can be better than one for superintending a jury,
from his long experience and long practice; but twelve men are much better for
deciding in cases where there is conflicting evidence, and where that evidence is
to be brought before them in an uncertain shape, because there are a great
variety of points in the case; one man takes one view, and another another, each
taking it, as it were, by a different handle, until, by reflection and argument,
they come to a unanimous decision. Nothing can be better, I am convinced,
than the decision of these twelve men, instructed as they are by the counsel and
the judge." —bid., vol. ii. p. 80.
Right of the Subject to Demand Protection from the Crown.-" Protection,
your lordships are aware, protection affording security of person and property, is
the first law of the state. The legislature has no right to claim obedience to
its laws, the crown no right to demand allegiance from its subjects, if the legislature and the crown do not afford, in return for both, protection for person and
property. Without protection, the legislature would abdicate its functions if it
demanded obedience; without protection, the crown would be an usurper of its
right to enforce allegiance."-lbid., p. 94.
Effects of Oaths in Weakening the Moral Principle.-" Increasing unnecessarily the number of oaths to be taken operates injuriously in a twofold manner-it
not only diminishes the sanctity of an oath, and begets an indifference to what
ought to be a high, moral, and religious ordination; but it hath another tendency, to check the law in its course in punishing crime. Everything that
diminishes the sanctity of an oath begets a carelessness about swearing, and
generates a habit of perjury and prevarication, which those who have to administer the law know to be the most difficult thing to deal with."-BROUGHAM, vol
ii. p. 109.




CHAPTER II.
THE STATE AND FEDERAL GOVERNMENTS.
THEIR UNITY-THE STATE EXCLUSIVE JUDGE OF PROHIBITED POWERS-THE UNION
NOT A CIVIL POLITY-NOT A DEMOCRACY-PERSONS AND MAJORITIES-HOW
REGARDED-THE SLAVERY QUESTION-ITS ALLEGED INCOMPATIBILITY WITH
FREE INSTITUTIONS-THE LAW OF ITS EXISTENCE AND ITS EXTIRPATION.
Now, let us consider that the States of the Union, in respect to
all ordinary matters of government, are just what they have ever
been since the first organization of civil institutions in this country.
For example, the State of New York is just what she was a century ago, an independent State, having an executive, legislative, and
judicial department. Scarcely an acre of its territory, or a noticeable fraction of its political rights, or an iota of its liberty, as a free
State, has ever been surrendered.  The control of its foreign relations, the coining of money, postal matters and a few other specific
interests, of a general nature, were transferred, not to an independent power, but to a power of its own creation and government.
In making this transfer, it is hardly possible that New York
intended in any sense, to make herself a subject State, not even
in reference to those things over which she declared the authority
of the United States supreme. The supremacy here accorded is
strictly legal in its nature, partaking far more of exclusive jurisdiction over the subjects than of dominion.
The general and the State law, so far as the people of the
State are concerned, are identical-they are both, to all practical
intents and purposes, the laws of the State. The Government of
the State draws to it and makes part of it, all laws of the Union,
made in obedience to the Federal Constitution.
This expresses the true unity of the system. It does not admit
the existence of two governments.  It is all one system.  By so




THE STATE AND FEDERAL GOVERNMENTS.              37
treating it, it is possible to maintain the rights and dignities of the
States on the one hand, and the integrity of the confederation on
the other.
It is nothing to the American people how persons abroad shall
see them. Whether the General Government is regarded as the
embodiment of power and the aggregation of legal authority or not,
is of no consequence.  We are viewing the structure of our institutions, not a picture exhibiting their lights and shadows from a
distant standpoint. They are extremely complicated, and, as we
have found, most difficult of enforcement.  The latter is due to the
practical recognition, by the States, of two distinct, and in many
respects, antagonistic polities.
It may seem anomalous, and extra-speculative, to maintain, in
the face of what has been written, said, and done by the people, that,
instead of two systems, we have, in reality, but one.  Nevertheless,
if we regard the true structure of the States, and the objects they
sought to accomplish in ordaining the Union, it seems impossible
to come to any other conclusion. As we have departed from this
vital doctrine of union, by recognizing the independent power and
authority of the General Government, making it not only supreme
over delegated interests, but building it up as a colossal foreign
state, in many respects, so have the signs of discord and civil
commotion multiplied upon us.
It is folly, and something worse, to suppose that two schemes of
independent government can be maintained. We must have unity
in fact as well as name. It is not in the power of human wisdom
and integrity to maintain independent government in the States,
and the independent government of the Union, unless it be on the
basis that the latter is purely the government of the States, having
no separate mission whatever.
Accountability, except as to those matters which have been
delegated to the Union, must ever be to the States. They remain
in the confederation as its only sustaining power. They fill, from
their citizens, all its offices, executive, legislative, and judicial. It
is their duty to see that its laws are faithfully executed, because it
is their government for specific national purposes-what Mr.
Hamilton called their political, in con tradistinction to their civil or




38        THE STATE AND FEDERAL GOVERNMENTS.
State Governments. It is their duty to see that its powers shall be
executed just as they were delegated; because that was their agreement. Just as they were delegated! It is as much a violation of
the compact to exercise the least Federal authority not delegated, as
to refuse to carry into effect the delegated powers. To refuse to
send Senators and Members of Congress to the Federal capital, to
neglect to appoint a Federal judiciary, would be a violation of the
Constitution, but no more so, than for the Senators and Members
of Congress and judiciary to assume to exercise unwarranted
authority. Concerning all delegated powers, the judiciary is made
the exclusive judge.  That is the agreement.  But in respect to
the prohibited powers, the States have retained the right of exclusive judgment. From the character of the compact, the parties to
it, and the ends sought to be accomplished, we hold this law of
construction to be equally necessary and reasonable. It is necessary,
because the parties to the compact remain in the Union, as sovereign, independent States. These attributes make it clear that they
ought to retain the exclusive right to judge of all matters affecting
their systems of local government, which they did not expressly
delegate. This right cannot be relinquished without placing it in
the power of the Union to sweep away all State institutions and
laws. Self-preservation demands that they shall retain it. It is
the vital clement of local freedom and independence.
The best reasons of State policy also demand it. It is just as
necessary that the Union should be kept within the strict letter
and spirit of its organic law as that the States should preserve their
freedom and independence.  We need not be told that the extinguishment of either of these elements of State government would
result only in their transfer to the Union, and not in their destruction. That, we know, is the theory of many persons intrusted with
the discharge of Federal duties. But it is not the theory of the
Union. It is dominion, which such men want, not a free system
of laws-it is individual, discretionary government, and not the
ancient free institutions of this country, without which, in all their
integrity, it will be found impossible, for many years, to rescue the
people from anarchy and bloodshed.




THE STATE AND FEDERAL GOVERNMENTS.               39
This rule of construction will be found, too, on examination, to
be entirely consistent with the provisions of the Constitution.
It is hardly necessary to say that that compact delegates
certain powers to the United States; declares that none other shall
be exercised; and that the powers not delegated nor prohibited to
the States, shall be retained by them respectively or the people.
After enumerating all the delegated powers, and prescribing, in
many cases, in what manner, where and how, they shall be executed,
a schedule of prohibitions is added. It is declared, for instance,
that " the freedom of speech and of the press shall not be abridged."'
This is the declaration of the States to the General Government,
a declaration which constitutes no part of that government, conferring no power upon it, intended, not only to limit its authority over
persons and property, in respect to free speech and a free press, but
to affirm the exclusive jurisdiction over both by the States. It is
manifest, then, that the Federal judiciary and all Federal officers, of
whatever character, are utterly prohibited from the least control
over these rights of the people: first, because they are natural, or
what the Constitution denominates reserved rights; and secondly,
because the governments of the States never delegated to the Union
the least control over them.
A reference to the delegated powers will render this conclusion
still more satisfactory.
The Federal system embraces exclusive authority over the revenues, postal accommodation, the coinage of money, weights and
measures, and a few other interests of a general nature. These are
Federal matters, not because they differ essentially from others
reserved to the people, but because their management was turned
over to the Union.  They are the subjects of its jurisdiction.  It
would be folly to question the authority of the United States over
any of the delegated powers; but a much greater folly to concede
the least authority over subjects not delegated, and worse still over
matters specifically reserved or prohibited.
These reservations and prohibitions mean nothing, if they do
not assert the exclusive jurisdiction of the State over all the subject
matters embraced in them. The States must take care of their
citizens, when their liberty and rights are taken away. The policy




40        THE STATE AND FEDERAL GOVERNMENTS.
of the law demands, in all cases, that it shall never be placed in
the hands of individuals to maintain their rights, however plain.
Resort must be had to the tribunals of justice. It is the State's
business to execute justice. It is, then, where a citizen has been
deprived of either liberty or property, by persons without authority,
or by Federal officials, without authority, far more an offence
against the State than the injured person. The latter is powerless,
while the former is an independent member of the confederation,
and as such is bound by all the dignities and obligations of nationality to vindicate the rights of its citizens, especially against every
Federal aggression.  We say especially against Federal aggression,
because aggression from that quarter is first to be resisted, as a
double means of preserving the Union on the one hand, and the
independent authority of the States on the other.
The real character of the Union, as a limited state, must not
be overlooked. It was no part of the design of the States, in creating it, to establish a civil polity. Their civil institutions were
already complete; and they were based on the clearest written
guarantees of freedom, and sustained by a public sentiment which
had never recognized, in government, any other principle. Just
relieved of an oppressive war, and threatened by the antagonistic
polities of Europe, they saw the necessity of cooperation in respect
to certain matters of government. It was believed by quite all the
leading statesmen of the day, that one foreign intercourse, commerce, and navigation, one currency, one postal accommodation,
and a few other matters of a general nature, would add strength to
the parts and greatly advance their material interests. The Union
was ordained on precisely this basis.
It took the form of an independent government, and was clothed
with the powers of such a government touching the interests to
which we have referred, but in nothingf else. To a political system,
embracing original authority over the people, with powers of legislation, a judiciary, and an executive, it bears little resemblance. It
has but few of the attributes of such a polity. There was no occasion to put in force any such scheme. All that was required of
that kind of government, already existed in perfection, as is abundantly shown in the fact that the States which ordained the Union,




THE STATE AND FEDERAL GOVERNMENTS.                41
without a single exception, maintain the exact forms of administratio- to-day that they then did.  This fact is positive proof of two
things:
First, that the Union was not intended to be a free civil polity,
in any just sense, but a compact of States of a political nature, for
certain economical purposes; second, that the States intended to
retain their right to continue to exercise sovereign authority over all
those interests which they had not delegated to the Union.
It makes nothing against this theory, that, in ordaining the
Union, they minutely defined its powers, and, in so many cases,
forbade the exercise of others.  There was, unquestionably, sufficient power conveyed to render this precaution necessary.  The
men of the Revolution were no believers that the wisdom and integrity of mankind were sufficient guarantees to assure the freedom
of the people, in the absence of positive restraints and prohibitions.
They knew that power was inclined to strengthen itself by exercise.
They had authorized the creation of an army and navy, for purposes of defence and security; and they accompanied this authorization by every conceivable guarantee, that neither should ever be
wielded except against the enemies of the people.
A free system of laws, and all the details of practical government, they had enjoyed from the very origin of society in America.
They were indebted, in point of fact, to their isolation, and to the
perils of frontier life, for this.  So that, in ordaining the Union, it
was their settled purpose, not to create a new system, but to extend
the old one, on such terms, limitations, and restrictions, as would
preserve the freedom and independence of the people.  They proceeded upon the theory that the surrender of free speech, a free
press, and the least measure of personal rights and property, was in
no contingency necessary to the maintenance of good government;
that, on the other hand, such surrender, by removing an effective
restraint, would be justly construed as a license for the commission of
the gravest crimes on the part of the public administration. It would
change, at once, the very character of the whole scheme, make the
agent the principal, the States subject parties, and the Union an
imperial power.  That such a polity is not what was designed to
be created, that it is utterly incompatible with a free system of




42         THE STATE AND FEDERAL GOVERNMENTS.
government, and that it would be impossible to maintain it in this
country, we hold to be equally clear. And if this is true of the
whole, it is true of every part of it. We are entitled to absolute
freedom, in respect to all the interests referred to, or we are entitled to none. The people are supreme, under the forms of their
own established government, or the government is supreme over
them. There is no middle ground to be occupied in this matter.
There is, we are aware, a wide distinction between a free people
and a free system  of laws.  We are discussing the latter on the
bases of the existing institutions of the States and of the Union,
neither embracing, by any fair construction, the least jurisdiction
or legal control over the liberties or property of the citizen.  All
that was sought to be accomplished was the establishment of
rules regulating and governing the ordinary relations of the people,
so that each individual member of the body politic might be protected in person and property. We have passed from a mere
democracy to a government of laws. We have surrendered the
control of majorities to the domination of an agreement, by which
all matters of state are to be determined.  This agreement was
not entered into for the purpose of protecting majorities, for they
can take care of themselves, but for the purpose of protecting minorities, even down to the least worthy citizen of the commonwealth.
The former, in the absence of legal restraint, are absolute, or,
rather, their action is itself law. It is so simply because, in such
case, majorities can be held to no account-they are the state.
There are neither moral nor logical elements in such a system of
government. Personal liberty and popular tyranny, absolute freedom and the most degrading bondage, unrestrained dominion and
hopeless subjection, are rudely blended into one scheme of administration.
A government of laws, whether free or otherwise, is impossible
on any other basis than the protection of minorities.  That of the
States and the Union exhibits this principle perhaps more perfectly
than any other known to history.  We speak, of course, of the
theory and philosophy of the polity, and not of its practical workings; for in the latter we find far more acts tending to its subver



THE STATE AND FEDERAL GOVERNMENTS.                43
sion than its maintenance.  Judged by what we have done since
the adoption of the Federal Constitution, it would seem  that,
instead of a government of States, bound together for certain specified general purposes, we have a government of majorities; instead
of a free system of laws, carefully guarding the rights of minorities,
and limiting the power of majorities, we have a government of
majorities. Their actual control of the administration, at least, is
incontestable. Their right to govern is also widely asserted. This
right can be contested only by showing that the Union was adopted
on another basis-that the voice of a majority is entitled to no more
weight than that of the smallest minority, in support of any measure which violates the Constitution of the United States, or the
rights of the people of the States which have been reserved.  The
controlling power is in the compact of union.  Majorities can legally govern only within the scope of that compact.
It must not be assumed that we regard majorities as always
in the wrong, or disposed to act in opposition to the public welfare.
Far from it, especially in a country like this, where the people
have the amplest means of acquiring information of public affairs.
It is, perhaps, the misfortune of an elective republic, that when the
majority-rule once gets control of the government, in opposition to
its organic law, it is capable of taintigq the whole scheme.  And
justly so, because it shows not only a determination not to abide
by the agreement, but a spirit of shameless persecution of those
who insist upon its fulfilment. It may be that the majority is
quite in the right, judged by any other standard than that of the
compact.  It would be great folly to maintain the perfection of
any system of government.  But if errors exist in the system, it
is far better to effect its modification in a legal way, than to overthrow it by the despotic will of majorities.
A complete illustration of these reflections is found in the career of the States and the Union touching the slavery question.
It must be admitted that a majority of the people of the States
are hostile to slavery; but it is equally true, that under the Constitution of the United States, the Government of the Union could,
in no manner and in no place, except in the District of Columbia,
gain jurisdiction of slavery.  There is not one provision of the




44         THE STATE AND FEDERAL GO-ERNINENTS.
compact of Union which, directly or by implication, confers such
jurisdiction.
Nevertheless, it is a historical fact, that the slavery question
has occupied a large portion of the time of Congress for the last
fifty years. Nor has it been a mere idle debate in that body, upon
the moral attributes and character of this relation.  Congress, by
the sole agency of majorities, by the instructing power of majorities, by the mad will, command and imperious dictation of majorities, has not only assumed jurisdiction of the subject, but legislated upon it, abolished it where it existed, prohibited its introduction where it did not exist; and finally, in the ordinary course
of usurpation, assumed to exercise unlimited control of it in every
part of the Union.
No well-informed and we'l-disposed man will maintain that this
action of Congress is authorized by the States or the compact of
Union.  And no student of government will venture to say, that
such action was consistent with the maintenance of a free system
of laws.  It was neither.  Laws must, under our scheume, be supreme over individuals and majorities, or they are nothing.  Whatever might be the result of a radical violation of the laws under
other governments, their complete maintenance in this country,
since the adoption of the Federal Constitution, is absolutely necessary.  The more so here, because the structure of our institutions
is of a compound nature, embracing many separate and distinct
nationalities in one General Government, created by compact, by
and between those nationalities. It is not, then, purely a scheme
of laws, but a compact of States also, leaving no discretionary authority to alter or suspend either, and making the life of both to
depend entirely upon their rigid and complete enforcement, in
every essential particular.
Whether the existence of slavery was compatible or not with the
establishment of such a system, is another and utterly foreign question. It is to be observed that in ordaining the Union, slavery was
an institution already legalized, extending to quite all the States of
the original confederation. It is manifest, then, that those who maintain the incompatibility of slavery with free institutions, are bound
to go farther, and show that the States of 1789 were incapable, by




THE STATE AND FEDERAL GOVERNMENTS.                45
reason of the existence of slavery, of ordaining such institutions.
This argument, we apprehend, followed to its legitimate end, accomplishes more than the enemies of slavery, at the present time,
desire.  It was one of their weapons, used in demolishing the
bulwarks of the Constitution, but now that they have removed the
obstacles in the way of federal jurisdiction and are wielding the
powers of the Union to override the States and slavery together, it
is no longer necessary to impeach the legal authority of the old
Union, on the ground of its incompatibility with slavery. This
authority was the legitimate subject of overthrow by majorities,
until those majorities got control of it. It was illegal and void so
long as it refused to recognize the mission of anti-slavery.  It is
legal, binding and sacred, in the exclusive execution of such mission.
We bring up this subject, not with a view of the least examination of the abstract question of slavery. Right or wrong, it is
a purely domestic interest, which those who maintain must defend.
It was so regarded by all the States when they ordained the
Union. It was so left by the compact of Union. Whatever has been
done since, by the President or Congress, to change its status, we
hold to be evidence of the ignorance of the people of what was
required to maintain a free system of laws. In this work the laws
have been subordinated to the dominion of individuals.
Whatever may be the public judgment on the subject of slavery,
we are bound, at least, to acknowledge its existence in this country.
This simple fact brings before us more than four millions of people
of an inferior race.  To release them from bondage and make them
coequal inhabitants with a dominant superior race, would be a
fearful experiment indeed.  We have no right to disturb the present order of things, except on the basis of the improvement of the
condition of the blacks.  The naked assertion of their right to freedom goes for nothing, unless by freedom we mean to assure their
improvement. Freedom to a people disqualified to maintain their
rights, is of no possible advantage.  The recent establishment of
republican government, in France, did not actually enfranchise that
people.  Invention is valueless to those who know nothing of its
uses or the process of its operation.  The daily experience of the




46        THE STATE AND FEDERAL GOVERNAMENTS.
whole world attests the truth of these suggestions.  Our own recent
history exemplifies it. It is as applicable to nations as to individuals. Its force was never more apparent than in the treatment of
the slavery question. Granting the ability of the negro race to
maintain free government, if separated from the whites, it will
hardly be contended that they will be able' to cope with the latter,
as coequal inhabitants. The races are certainly antagonistic. The
one or the other will have dominion; which, we apprehend, it is not
difficult to determine. It is, in this view, simply impossible to
benefit the negroes by abolishing slavery.  If there is no other
mode by which they can be improved in condition, their welfare
demands that they shall, for the present, at least, be let alone.
What the future holds in promise for them, it is not for us to determine.  There is not a day's observation, or a single lesson of
experience, which does not teach us that there is a fitting time for
all things. Perhaps this admonition is more impressively conveyed
to the American people in the history of slavery, in this country,
than anywhere else.  The process and progress of its expulsion
here and there, its removal from one State and its introduction into
another, show clearly that there is a law which not only governs its
existence, but which will, in the work of time, effect its overthrow.
Great caution, we know, is required in dealing with all such
questions. They are too apt to be viewed as mere abstract matters. In this way we come to the ready conclusion, that slavery
ought, at once, to be abolished; simply because to hold man in
bondage, is wrong and sinful. This reasoning is conclusive with
all men who view the subject in the abstract. But in point of fact
slavery exists in this country, as it must in every other, as a social
institution. It is involuntary labor rendered by an obviously inferior race, to a superior race. Its violent overthrow, in the very
nature of things, must produce general disorder, anarchy, and
bloodshed. If the blacks could be removed from the country and
assisted to maintain civil government, the nzowledge they have acquired solely through the agency of bondage, might be sufficient to enable
them to better their present condition.  As a competing race of
freemen, with the white inhabitants of this country, they are certain
to fail. We have the most complete and overwhelming testimony




THE STATE AND FEDERAL GOVERNMENTS.              47
upon this point, in the career of the free Indian tribes. They were
not only free, but organized into nations. We met three millions
of them, and never once made an effort to subject them to our
laws.  They were our competitors for empire and dominion, in the
field of mind and labor. They now number about three hundred
and fifty thousand persons.  This result, surely, has not been
brought about by undue oppression on our part. On the contrary,
we have sought, by every means which genuine benevolence and
humanity could suggest, to elevate them in the scale of moral and
Christian life. We have instructed them in the use of machinery,
and taught them  lessons in agriculture.  But all to no purpose.
There was one lesson they never could understand-how to take care
of themselves. Right on the opposite page of our history is written
an account of another inferior race, who have been held in slavery
to the whites. They have increased from a few hundred thousand
to four and a half millions. They were once held by all the American States. As population crowded on production, their labor became unprofitable here and there, and this was sure, in a little time,
to abolish the relation. This, we apprehend, is the only legitimate process of its extinction.  We doubt, indeed, if it is the moral
right of any State of the Union to abolish slavery by any other
means. The blacks are entitled to protection, and they can secure
it only by remaining as they are, subject to the law referred to.
There are two radical passions which may be counted as the peculiar and ever-active enemies of free government-partisanism and
fanaticism. The former is inherent in the system, or rather, the
necessary production of elective institutions. It is a pervading
and damaging evil.
Civil liberty presupposes intense political action through all
the organs of the body politic. Without necessarily involving the
equality of the whole people, it opens the way to every citizen, by
which it is made possible to secure, not only equal consideration in
the State, but command its highest offices and honors. The very
statement of this feature of free institutions is quite enough to show
that intellectual progress under it is greater than under absolute or
despotic rule. There is more expansive power in every view, more
energy, more mind, more thought, more invention, and, we appre



48         THE STATE AND FEDERAL GOVERNMIENTS.
hend, far more material production. It would be an exception to
all rules, if there should not be found something to counterbalance
these great benefits and advantages of civil liberty.  It is not often
that blessings are dispensed without something to remind us that
they are to be enjoyed only on certain conditions. The wisdom of
a free system of laws, when wisely administered, none will question.
But the very advantages it assures are often the cause of its failure.
This is especially the case in the almost necessary, certainly most
probable, growth of partisanism. It springs immediately out of the
scramble for office and place which is sure to result from the nulmber and character of claimants.  These persons may enter the field
full of patriotism and purpose to promote the general good. In a
little time they consult public prejudices, and shape their course
more by what will promote their own interest than that of the state.
It is easy to see, in this way, how the people may be led to give
their allegiance to party, and actually to forget or overlook the
obligations of their laws.
These suggestions find the completest verification in the progress
of slavery and anti-slavery in the United States. Very much of
the hostility, so far as the great body of the people is concerned, to
slavery, has a purely partisan origin. It has been promoted as a
means of acquiring office and government. It has grown, in numerous instances, to be stronger than patriotism, stronger than the
Constitution.  The natural product of this hostility to slavery, one
which could hardly fail to follow its connection with elective institutions, is fanaticism.  This species of lunacy is far less reasonable
and more difficult to govern than the other. It is a sort of hurricane which sweeps everything before it. All its powers are concentrated upon one object.  Everything else is lost in the pursuit
of its one cherished end. It may be temperance to-day, native
Americanism  to-morrow, slavery next, Catholicism  next, masonry
wn',:t, and so on to the end of its mission. History is a falsehood, experience a deception and a snare, Christianity a cunning fraud, when
they cross the path of these monster enemies of free institutions.
They have issued an edict against slavery. They are armed for
its overthrow.  They are now fighting battles for its extirpation.'What they have done and what they have sacrificed, no man can tell.




THE STATE AND FEDERAL GOVERNMENTS.                        49
NOTE.
1. Liberty of the Press.-Jeremy Bentham, in his letter, written in 1820, to
the Spanish people on the subject of the freedom of the press, says: "Spaniards! The Madrid intelligence of the prosecution of a newspaper editor for
comments on the MIadrid system of police, and of the proposed law against political meetings, has just reached me. I am astounded! What? is it come to
this?  So soon come to this?  The men being men, of their disposition to do
this, and more, there could not be any room for doubt. But that this disposition should so soon ripen into act, this (I must confess) is more than I anticipated, that the impatience of contradiction, not to say the thirst for arbitrary
power, should so soon have ventured thus far; these in my view are of themselves highly alarming symptoms. By the prosecution, if successful, I see the
liberty of the press destroyed; by the proposed law, if established, I see the
almost only remaining check to arbitrary power destroyed.  Taken together,
they form a connected system-these two measures.  By the authors of this
system you have of course been told, that it is indispensably necessary —necessary to order, to GOOD order, to tranquillity-and perhaps honorable gentlemen
may have ventured so far into the region of particulars and intelligibles as to
say, to good government, and some other good things.  Spaniards! It is neither
necessary, nor conducive to, nor other than exclusive of, any of those good
things.  What says experience?  In the Anglo-Anmerican United States (alas!
alas! when Bentham wrote he wrote truth, but were he living now he could
scarcely refer, with any good effect, to this country to support his views), of the
two parts of this system, neither the one nor the other will you see. No prosecution can there take place for anything written against the Government, or
any of its functionaries as such. No restriction whatever is there on public
meetings held for any such purpose as that of sitting in judgment on the Constitution-on any measures of the Government-or on any part of the conduct
of any of its functionaries.  There is no more restriction upon men's speaking
together in public than upon their eating together in private.
"Against the allowance of the liberty of the press, considered with a view to
its effect on the goodness of the government, no arguments that have been or
may be adduced will bear the test of exanmination.
"I. First comes daengerous.  Dangerous it always and everywhere is; for it
may lead to insurrection, and thus to civil war; and such is its continual tendency.
"-Answer: In all liberty there is more or less of danger; and so there is in
all power.  The question is-in which there is most danger-in power limited
by this check, or in power without this check to limit it. In those political communities in which this check is in its greatest vigor, the condition of the members, in all ranks and classes taken together, is, by universal acknowledgment,
the happiest.  These are the United States, and the kingdom of Great Britain
3




50          THE STATE AND FEDERAL GOVERNMENTS.
and Ireland. In the republic this liberty is allowed by law, and exists in per.
fection: in the kingdom it is proscribed by law, but continues to have place, in
considerable degree, in spite of law.
" II. Next comes needlessness. To the prevention of misgovernment, the other
remedies that government itself affords, are adequate. The rulers in chief, whoever they are, have nothing so much at heart as the happiness of all over whom
they rule.
"Answer: The rulers in chief, whoever they are, if they are men, have their
own happiness more at heart than that of all over whom they rule put together:
the very existence of man will in every situation be found to depend upon this
general and habitual self-preference.
" As to wisdom, it can never be so near to perfection without as with these
all-comprehensive means of information, which nothing but the liberty here in
question can give. The characteristic, then, of an undespotic government-in
a word, of every government that has any tenable claim to the appellation of a
good government —is the allowing and giving facility to a free communication
of thought by vehicles of all sorts; by signs of all sorts; signs to the ear, signs
to the eye, by spoken language, by written, including printed language, by the
liberty of the tongue, by the liberty of the writing desk, by the liberty of the
post office, by the liberty of the press."




CHAPTER III.
THE JUDICIARY.
ITS OFFICE IN A GOVERNMEMT OF LAWS-ITS HIGH TRUSTS AND DUTIES-SUSPECTED
AND CONVICTED PERSONS-HOW REGARDED-HABEAS CORPUS-EXTRA-CONSTITUTIONAL MEASURES-DEVICE FOR VIOLATING LAWS-BOLD USURPATIONSTIHE UNION A BROTHERHOOD —ACCOUNTABILITY OF FEDERAL OFFICIALS TO.THE
JUDICIARY-THE EQUILIBRIUM OF THE SYSTEM.
THE judicial department of a free system of laws, is by far the
most important of all the branches of the public service.  With no
legislative power or partisan influence, its sphere is confined to the
execution of the weighty trusts devolved upon it, by the state on
the one side, and the people on the other. It is purely an umpire,
with power to enforce existing laws. It contemplates all public
institutions as a party, and recognizes its duty to protect them.
The people are also a party, and entitled, in like manner, to protection. The judicial power of the state, in this general sense, is
called upon to exercise, what may be termed, political functions.
The relations between the people and their Government are purely
reciprocal. Obedience to laws is no more a duty of the former,
than their honest enforcement by the latter.  Their violation, by
either, is a crime.
These reflections indicate the general office of the judiciary.
It is the exclusive judge of what is due to the state and what is
due to the citizen.
The constitution of the Federal Judiciary limits its power to
nine specific trusts:
1. " To all cases in law and equity arising under this Constitution, the laws of the United States, and the treaties made or which
shall be made under their authority.
2. " To all cases affecting ambassadors, other public ministers,
and consuls.




52                      THE JUDICIARY.
3. "To all cases of admiralty and maritime jurisdiction.
4. " To controversies to which the United States shall be a
party.
5. "To controversies between two or more States.
6. " Between a State and the citizens of another State.
7. " Between citizens of different States.
8. " Between citizens of the same State, claiming lands under
grants of different States.
9. " Between a State and the citizens thereof and foreign states,
citizens, or subjects."
The first of these specific delegations of power, is far more
general and comprehensive than the others, extending to all cases
in law and equity arising under the compact of Union. If
this language bears any signification, beyond a mere limitation of
jurisdiction to the federal system, it makes the judges of the
Supreme Court of the United States a tribunal, with exclusive
power to determine, not only the rights of litigant parties in suit,
but the constitutionality of all federal laws which shall be brought
before it for enforcement.  In this respect, the "judicial power,"
as it is denominated, is intrusted with the very highest of political
functions.  It is as much its duty to interdict the enforcement of
illegal acts as to execute those which are legal.
It has been found, in the practical life of every description of
administration, that the judicial authority has maintained, through
every trial, a far higher tone; more incorruptible integrity; more
capacity and disposition to allay excitement, reconcile differences,
and adjust disputes personal and general, than any other branch, of
the public service.  Less ostentatious than the legislature, unobtrusive and almost unnoticed in its deliberations; earnest, profound and impartial in its decisions, it commands public confidence,
and exacts a willing obedience to its awards.  It is preeminently
the tribunal of the people; an umpire, with power, not only to
determine all controversies between persons, but an international
commission to adjust questions of difference between the States and
the Union and the citizen and the Union.
In the enforcement of all local laws, embracing the internal
administration of justice through the whole range of civil institu



THE JUDICIARY.                       53
tions, the collection of debts, the punishment of crime, the maintenance of order, the judiciary is the mainspring of the political
machine.  It is, to all intents and purposes, the animating principle of the state.
Under general regulations, covering the ordinary intercourse of
life, it exercises absolute power.  The character of its administration is indicated by the fact, that its decisions constitute a body of
laws, of higher merit and wider influence than those ordained by
the legislature.  It is impossible indeed to conceal this feature
of the government of the States and the Union.  That there is
something in the structure of these great departments of administration, or in the nature of the duties assigned to each, which
enables the judiciary to command higher qualifications and intellect, we do not question.
In this connection it is a noteworthy fact that of all the complaints made by parties and sections against the general Administration, involving, in many cases, alleged violations of the Constitution, and in others, of fundamental principles of political economy, not one has been laid at the door of the judiciary.  Usurpation
of authority has been charged upon the Executive and the legislature, and, at times, a general tendency to disregard constitutional
obligations and duties manifested; but we know of no instance,
beyond the lowest partisan circles, where the judicial authority of
the States or the nation has been held responsible for the least
offence of the kind.
It must not be admitted, in explanation of this, that its office
is comparatively of little account.   On the contrary, in a government of laws, it is by far the highest, most important and responsible of all the institutions of state.  Its range is broader; its
duties more weighty and elaborate; its government more complete
and universal; its trusts more sacred; and, we may add, its decisions more satisfactory, than any other department.  It is the
state, to all practical intents and purposes. When the privilege of
the writ of labeas corpus was partially suspended in England, Mr.
Burke denounced and declared it a dissolution of government.  In
this denunciation we see the true theory of the English Constitution. It is a free system of laws, and such a system is impossible




54                   FREE GOVERNMENT.
on any other basis than the maintenance of a free, impartial, and
unrestricted judiciary.  This freedom, too, must be absolute.  It
must be, as Goethe says, " a courageous magistracy," for that is the
greatest blessing a free people can have.  The rights of the Habeas
Corpus Act, under it, are inalienable and indestructible.  Their
suspension, by whomsoever ordered, undermined and destroyed the
whole scheme of government. It was not a mere political offence,
but a fatal blow at the system, which alone was the object of
preservation and the source of authority. There was no extravagance in the speech of Mr. Burke, as will be seen by an examination of the duties of the judiciary.
It is the province of the legislature to enact laws for the punishment of crime; but crime exists alone by the decision of the
courts. The entire innocence of parties charged with offence, is
presumed until they are convicted by the tribunals of justice.
Hence the classification of offenders, as suspected and convicted
persons. This distinction is clearly recognized in the laws of the
States, and in the Constitution and laws of the Union.  While no
limitation is put upon the judges, in dealing with convicts, simply
because they are outlaws, they are charged with the greatest circumspection, and bound to the severest restraints, touching the
treatment of persons suspected of crime.
The reason of this is too obvious to justify comment. It is the
most vital feature of a government of laws. There must be certain
written evidence of guilt submitted to a peace officer before suspicion can legally attach to the offender.  He cannot be held as a
suspected person on any other condition.  If he has violated the
law, let the proof of the facts be laid before the judges of the law.
It is just as reasonable to expect the judiciary to be proficient in
the military service as to suppose that soldiers are qualified to
discharge the duties of the legal profession.
The Federal Constitution provides, what was supposed, at the
time, to be the amplest precautionary restrictions, upon any and
all persons having the right of arrest and imprisonment, against
the abuse of such right and its corresponding injury.  It declares,
for instance, that " no warrant shall issue, but upon probable cause,
supported by oath or affirmation;" and " no person shall be held




TIIE JUDICIARY.                      55
in answer for a capital or other infamous crime, unless on a presentment or indictment of a grand jury; " and " no person shall be
deprived of life, liberty, or property, without due process of law;"
and " excessive bail shall not be required."
These provisions apply exclusively to persons suspected of crine,
and, in no case, to persons convicted of crime. There is nothing in
them but the exercise of a wise and htmane precaution against
the abuse of power, by magistrates or others in authority.
The direct office of the writ of habeas corpus is to recover the
freedom of a citizen wrongfully taken away.
This law was enacted in aid of the provisions of the Constitution quoted, and exclusively for the benefit of suspected persons.
It recognizes the possibility of illegal imprisonment, in spite of the
protective features of the organic law, to which we have referred,
and provides for a rehearing of the case.
There is nothing new in all these ordinances and regulations.
They are a part, and a necessary part, of the machinery of all free
governments.  They are the very features of such a system  which
distinguish it from  absolutism.  They take away, not only all
right to exercise individual will and judgment, but every semblance
of authority to do so. They make the law supreme, by prescribing
certain forms of proceeding; and then, conceding the possibility of
its evasion, they provide the means of recovering the freedom of a
citizen thus illegally deprived of his liberty.
All these safeguards against oppression are of no possible account without an appropriate agency in the government to enforce
them. A right, without a corresponding remedy, in the event of
its violation, is a mere word of promise to the ear. The Federal
Constitution is not only a chart, pointing out political shoals and
treacherous currents, but a complete system of political navigation.
It is a state, fixing with almost mathematical precision, the rights
of persons and property, and on this basis giving power to enact
and enforce laws. It was intended that these rights should be
maintained precisely as they are placed in the compact. For this
distinct and avowed purpose, among others, the judiciary was
organized.  Its constitution and powers are explicit.  It is made a
coordinate department of the government, its jurisdiction extending




56                   FREE GOVERNMENT.
over all federal grants of which it is the only judge. With no
authority to enact laws, it is its duty to determine the legality and
constitutionality of those enacted by Congress.'
If we have fairly stated the office of the judiciary, it is hardly
necessary to add that its suppression is fatal to the Union.  It
leaves a quivering, lifeless body to testify that the heart has been
torn from it by the ruthless hand of ambition.
Tt is certainly a wonderful turn of the wheel of fortune, which
imposes upon the American people an occasion for the discussion
and maintenance of rights of persons and property, which are not
only inherent in every freeman, but which are acknowledged in
every line of their Constitution and laws. Nothing but the most
astounding events of the day could have provoked this extraordinary condition of things.  We cannot believe, as thousands of the
best informed unquestionably do, that a disposition anywhere prevails to overthrow our free system of laws.  That we have coimmitted great mistakes in managing public affairs; that we have
shamefully violated almost every principle of constitutional government; that we have conceded too much power to the Executive,
where power is never legally exercised; that we have, in short,
trusted most to that which, in the nature of things, should be
trusted least, cannot be questioned.  The plea on which these
things have been done, too, is scarcely less criminal and treasonable,
than the acts and omissions of which we complain.  A large portion
of the people proclaimed that the civil commotions of the state
made it necessary practically to abandon the government of the
Constitution in favor of the existing Administration.  This monstrous heresy has borne its legitimate fruit.  We have a despotism
without a dynasty.
With no partiality for dynastic government, and no belief in
the possibility of its maintenance, in the present temper of the
American people, it is certainly much to be preferred to the reckless system now in force at Washington.
The President of the United States, by a strict construction of
the Constitution, is endowed with no creative powers whatever.
Hie is called the Executive, and required to fill certain offices, by
the advice and consent of the Senate. As the political head of the




THE JUDICIARY.                       5 7
nation, it is his duty to conduct all foreign relations and generally
to see to it that the laws shall be faithfully executed.  He is not
intrusted with the power, by virtue of his own action, to execute
a single law of Congress governing the ordinary affairs of the people.
It is the province of Congress to create all local executive offices
necessary to carry into effect the laws of the Union. The President
may appoint incumbents, by the consent of the Senate.  He is a
sort of commander to give orders to engineers, whose duty it is to
execute the laws. In the event of failure, his power is exhausted
by removing the delinquent, who is then turned over to the judiciary, where justice is administered and the rights and dignities of
the state vindicated.  There is not an element of constitutional
government in the executive department.  Compare this theory
of the Union with its present administration, and let us see what
we have done.
Without the dignity which commands respect, the stability
which assures order, or the magnanimity which often springs from
the exercise of supreme power, we have a weak, vacillating political
hybrid, so vulgar and offensive as to be no longer endurable even
to its own parasites. It is the revel of the midnight robber in the
house of ihe peaceful but despoiled citizen. It is that prodigal use
of power, which in itself establishes its abuse.
The governments of the States and the Union are not a mere
arbitrary arrangement of covenants and obligations.  They were
founded on great moral rights and principles, every one of which
would be binding, without a single section of law authorizing their
enforcement.
It would, for instance, be wrong and sinful to take life, liberty,
or property without resorting, in every case, to recognized legal
tribunals; so of trials and punishments, without an impartial
jury; so of arrests of persons, without written proof of guilt; so
of forfeitures of property for treason or other felony.  It would be
wrong and sinful, in the event of arrest, to deny the right of a
rehearing.
Any departure from these settled principles, aside from the guilt
involved in the deliberate violation of the Federal Constitution, is a
great moral crime.  The rights assailed are inherent and indestrue3*




5 8                  FREE GOVERNMENT.
tible, except by violence. The President, in no event, can have
jurisdiction over them. They are matters which, in their very
nature, come within the exclusive government of the judiciary.
The latter is far more an executive department, so far as the
enforcement of laws is concerned, than that of the President;
because it is charged with the special duty of enforcing laws, and
endowed with absolute power to determine their binding force and
constitutionality.  For illustration, the Constitution declares that
" treason shall consist only in levying war against them (see Sec.
5), or in adhering to their enemies, giving them aid and comfort; "
and that " no attainder of treason shall work corruption of blood or
forfeiture, except during the life of the person attainted."  Convictions for treason and forfeiture of property on any other ground
than this are void. It is the exclusive office of the judiciary to
declare them so, and to hold to legal account those who act in
violation of this fundamental law of the Union.
But it is urged, we repeat, that pressing exigencies of public
affairs demand the exercise of unrestricted power by the chief of
the state; and justify a disregard of acknowledged principles and
obligations of law. This is the philosophy of despotism.
Wherever it prevails, we apprehend, however, it will be found
that extra-constitutional measures have not only preceded such
exigencies, but caused them-that civil commotions have been
fomented for the sole purpose of justifying such measures. Upon
this point we need refer only to the conduct of the Federal Government, during the existing war, in all the border Slave States;
to the policy adopted to degrade those States into the merest
dependencies upon the public administration; to the suppression of
the judiciary in all the States, which might otherwise have vindicated the laws of the Union; to the exercise of legislative powers
by every local military commander; and finally, to the practical
exercise of supreme and absolute power, over the people, by the
President of the United States.
These examples of usurpation not only prove the wickedness of
the pretence that extra-constitutional measures were demanded to
meet unlooked-for and overwhelming difficulties; but they show
conclusively, in the sequence of events, that such difficulties were




THE JUDICIARY.                       59
created for the very purpose of justifying the assumption of absolute power.  They indicate the process by which the free system
of laws, under which the American people have lived and prospered
for more than two centuries, has been swept away, almost unnoticed,
within the few months of our criminal civil war.
It must be confessed, in reviewing this degrading picture of
public affairs, that there has been no midnight intrigue and deception in the work. This is the President's view of his powers: "As
commander-in-chief of the army and navy in time of war, I have the
right to take any measure which may best subdue the enemy."
It is equally candid and explicit. If trial by jury, though an
explicit constitutional right, should interfere with the efficiency of
the army, he may suspend it. If the judicial arm of the States
and of the Union, in his judgment, should render the military less
effective, he may set it aside.  If the seizure of private property for
public uses without compensation, the arrest and imprisonment of
citizens without any process of law, the suppression of the press, of
religious freedom, free speech, and the confiscation of estates", 4 by
military commissions, provost marshals and their county deputies,
should, in his judgment, be regarded as appropriate war measures,
he would have the right to enforce them.
Then comes, from the same exhaustless fountain of despotic
power, the right of transportation on the part of the President by
order of military commissions-the right to seize a citizen, try him
by court martial, sentence him to imprisonment or death, and to
commute his punishment by an arbitrary edict, commanding that
he be sent beyond the jurisdiction of the United States. It will
not do to pass this flagrant outrage upon the people and the Federal Constitution by a reference to one or two prominent cases. It
is the regular and every-day practice of the Administration in quite
all the border States; and, the power is exercised by local commanders and provost marshals, without any supervisory control by
the war department. Blackstone, speaking of this gross violation
of the plainest rights of the people and of the highest dignities of
the state, in the same act, says:
" A natural and regular consequence of personal liberty is, that
every Englishman may claim a right to abide in his own country so




60                   FREE GOVERNRXIMIT.
long as he pleases; and not to be driven from it, unless by the sentence of the law.  The king, indeed, by his royal prerogative,
may issue out his writ ne exeat reguai, and prohibit any of his
subjects from going into foreign parts without license.  This may
be necessary for the public service and safeguard of the commonwealth. But no power on earth, except the authority of Parliament
[which is the same as that of the States and the people in this
country], can send any subject of England out of the land against
his will-no, not even a criminal. For exile and transportation are
punishments unknown to the common law; and wherever the latter
is now inflicted, it is either by the choice of the criminal himself to
escape a capital punishment, or else by the express direction of
some modern act of Parliament.  To this purpose the great charter
declares that no freeman shall be banished unless by the judgment
of his peers or by the law of the land. And by the Habeas Corpus
Act (that second Magna Charta and stable bulwark of liberties) it is
enacted that no subject of this realm, who is an inhabitant of England, Wales, or Berwick, shall be sent prisoner into Scotland, Ireland, Jersey, Guernsey, or places beyond the sea (where they cannot
have the full benefit and protection of the common law), but that
all such imprisonments shall be illegal, and that the person who
shall dare to commit another contrary to the law, shall be disabled from
bearing any office, shall incur the penalty of a prelmunire, and be incapcble of receiving the king's pardon; and the party suffering shall also
have his private action against the person committing, and all his
aiders, advisers, and abettors, and shall recover treble costs, besides
his damages, which no jury shall assess at less than five hundred
pounds." 5, 6
So far is this exemption of the subject from exile carried, in
England, that the Government has no power to force one of its
people to discharge diplomatic or other duties abroad, except persons in the naval and military service, because such a power might
be construed into a right of actual transportation.
It must be conceded, if the President has a right to take any
measure he may deem proper, in timne of war, in order to subdue
the enemy, it extends to transportation as well as absolute domestic
rule.




THE JUDICIARY.                       61
That other Governments, including England, with two or three
Continental exceptions, have abolished martial law, is no argument
against its legal existence here. We must go to our own records to
prove it to be one of the institutions of our society.  If we cannot
find its authorization there, it is clearly a usurpation. The President says he is authorized to enforce its powers in time of war. Its
origin is, then, war. It had been abolished in England long before
the Revolution. It had of course been abolished in this.country at
the same time. It made no part of the institutions of the States when
they adopted the Constitution. Even military law, except strictly
in the military service, and confined exclusively to the preservation
of discipline, was entirely unknown in both countries.  This principle is illustrated in a case which originated at Fort Niagara, in the
State of New York. A soldier committed an offence within the jurisdiction of the fort, and while strictly in the military service.  He
was indicted by the civil authorities. It was claimed that it was an
offence cognizable only by military tribunals.  The court held that
Fort Niagara, though a post occupied by the troops of the United
States, had never been conveyed to the latter so as to exclude the
jurisdiction of the State-that the United States could acquire jurisdiction within the limits of a State only by positive cession.  It
was argued in the case, that Fort Niagara was held by the British
authorities at the close of the war, and surrendered to the United
States; and that the State, therefore, never had acquired jurisdiction of its grounds.  Against this plausible reasoning the court opposed the great doctrine of State sovereignty and independence.
We allude to this event to show  how the authority of the
United States was regarded at the time, rather than to illustrate
the powers and duties of the Union or the States " in cases of rebellion." If the former can gain jurisdiction within the territorial
limits of the latter only by cession, it determines, clearly enough, at
least, the identity of the States as a governing power.  Chief-Justice Taney says: " Unquestionably a State may use its military
power to plit down an armed insurrection too strong to be controlled
by the civil authority."  So, unquestionably, a State, finding its
civil and military authority insufficient to put down armed insurrection or rebellion, may call to its aid the military arm of the




62                   FREE GOVERNMENT.
Union. Such a call is its cession of jurisdiction to the latter within
the limits of the State.  The preservation of the civil authority of
the State and the political authority of the Union is the end to be
attained.
How, then, is it, that the President may, under such circumstances, take any measure which he may think wilt best put down
rebellion? Is he clothed with power not only to put down rebellion, but to suspend the civil institutions of the State, which he was
called upon to sustain and uphold? Does rebellion in one or more
States, at the option of the Administration, transform the Union into
an army and navy?  Certainly so, if he may declare martial law
and exercise its powers; for martial law, as he has enforced it, is a
complete supersedeas of all civil authority.  But he is not content
with martial law.  Hume, speaking of this species of government,
says:
" The Star Chamber and High Commission and court martial,
though arbitrary jurisdictions, yet had somle pretence of trial, at
least of a sentence; but there was a grievous punishment very familiarly inflicted in that age (Elizabeth), without any other than
the warrant of a SECRETARY OF STATE or of the privy council, and
that was imprisonment in any jail, and during any time, that the
ministers should think proper.  In sitspicious times all the jails were'
full of prisoners of state, and these unhappy victims of public jealousy
were sometimes thrown into dungeons and loaded with irons, and
treated in the most cruel manner, without being able to obtain any
remedy from law. This practice was an indirect way of inflicting
torture."
This step, beyond the jurisdiction and forms of martial law, has
been taken, by the existing Administration, even so accurately as
to make the historian's description of the practice of the English
queen's government an exact account of the present Government of
the United States. This little picture would be incomplete without
another extract from the same learned author, touching the offices
of one or two other institutions of Elizabeth's administration.  He
says:
" One of the most ancient and most established instruments of
power was the Star Chamber, which possessed an unlimited and




THE JUDICIARY.                       63
discretionary authority of fining, imprisoning, and inflicting corporal
punishment, and whose jurisdiction extended to all sorts of offences,
contempts, and disorders, that lay not within the reach of the commlon law.
"There needed but this one court in any government, to put an
end to all regular, legal, and exact plans of liberty. For who durst
set himself in opposition to the crown and ministry, or aspire to
the character of being a patron of freedom, while exposed to so
arbitrary a jurisdiction? I much question whether any of the
absolute monarchies in Europe contain, at present, so illegal and
despotic  a tribunal.          But martial law  went beyond
even these two courts, in a prompt and arbitrary and violent method
of decision. Whenever there was any insurrection or public disorder, the crown employed martial law, and it was during that time
exercised not only over the soldiers, but over a whole people. Any
one might be punished as a rebel or as an aider and abettor of
rebellion, whom the provost martial or the lieutenant of a county
or their deputies pleased to suspect."
It must be remembered that these things occurred in England
before martial law had been abolished, through the Petition of
Right, which declares that " no man shall be prejudged of life or
limb against the forms of the Great Charter,"  " that no man
ought to be adjudged to death, but by the laws established by this
realm, either by the custom of the realm, or by act of Parliament, and that the commissions for proceeding by MARTIAL LAW
should be revoked and annulled, lest by color of them any of his
majesty's subjects be destroyed or put to death contrary to the laws
and franchise of the land;" and long before the feeble colonies of
this country had become objects of serious political interest. So
that so far as the American people are concerned, they are indebted
to Mr. Lincoln's Cabinet for their first practical lessons in this
species of arbitrary government.  Military law, as it is understood
and enforced in England, would answer none of the ends sought to
be accomplished; because that would leave the judiciary perfectly
free to exercise absolute control over every pretended offence, committed outside of the military service.  There is no possible way
open to the latter, under the British system, by which, in any con



64                   FREE GOVERNMENT.
tingency, the military can acquire jurisdiction over civil offences.
It is this feature of the system, which more than anything else,
marks the transition from feudal or arbitrary rule to the present
government of laws.  The Star Chamber, High Commission, and
court martial are fair expressions of the old law of England-the
old covenant which has been superseded by the Christian politics
of the present day.
But it is maintained, with some plausibility, that it may not
always best subserve the interest of the state, faithfully to execute
its laws; that this species of political heresy may be extended to
the enforcement of arbitrary orders, even in direct opposition or
contravention of its organic laws. Without admitting the propriety
or justice of this terrible doctrine, its enforcement surely should
be limited, if it is ever recognized, in such manner as never, in the
slightest degree, to impair the integrity of the political system.  Those
who claim it as necessary, in order to preserve the life of the state,.assert of course, that its institutions are defective-that they are
deficient, at the very time when they ought to be sufficient. In the
case of the United States, in the present rebellion, the Administration have assumed not only extra-constitutional powers, but have
set aside every constitutional guarantee of the liberty of the people.
If they were authorized by overwhelming circumstances to take
measures of an arbitrary nature, they must be limited to the first
meeting of Congress, and, then, in no case, so as to impair the rights
of a single citizen of the republic.  The Government could be
preserved only by protecting the rights of every man in the country. That was its only great office. Their preservation was the only
end in view. We cared not to conquer an enemy, but to make a
friend. If we lose free government, it is a poor consolation to reflect that we have won a battle. We can triumph only by convincing the world that we are capable of maintaining a free system
of laws; and this we can never do except by subordinating the
military, in war and in peace, to the civil power. It is the civil
power that makes war against the South. It is the civil power
which is struggling for existence and maintenance. It employs the
army, and must ever command the army. This command, too, must
be absolute. It is the law of the state, and there is no other law.




THE JUDICIARY.                       65
Battles lost, in the present fearful struggle, have not been our
greatest misfortunes. When we surrendered an independent judiciary, and admitted the governing power of circumstances over the
most venerable and freest system of laws in existence, we did more
to degrade the people of the United States before the world, than
could have been done by the loss of a thousand battles. We undertook to trade off the fame and success of a great nation for the
transient and criminal honors of martial glory.  WYe preferred the
Norman law of conquest and its feudal government, to the Saxon
law of liberty, equality, and justice.  We would have the dominion
of the sword, with all its blood and waste. It was our right. The
majority of the people said so.  Majority is power.  We had the
power.  Minorities must come to us for terms of reconciliation and
peace. There is no magnanimity in politics-certainly none in war!
It is a trial of strength, not an issue of fact. We are not debaters,
but fighters.  We have no civil institutions to save, but an enemy
to punish!
We have referred to the conduct of the present Administration,
we repeat again, with no intention of discussing its measures, but
solely for the purpose of illustrating the principles of free government. There is not a question but that the State and Federal systems were as perfect as it is possible for human intellect and patriotism to make.  If we have failed to maintain them, it is our fault,
not theirs. In the judgment of many, the Union of the States was
in great danger of failure through its elective corruptions.
Public demoralization was almost universal.  The confidence of
the people in the integrity of their agents was greatly impaired.
These evils, we believe, have led to the present unfortunate war
between the States of the North and the South. It is a war
against free government, if not the Union, by both belligerents.
War between the States is disunion.  It is much to be doubted if
the separation could have been effected by any other process; as
it is certain that reconciliation is impossible through its agency.
There must be reconciliation, or there can be no union.  Successful war: even to subjugation, is separation with a terrible vengeance.
It will not only destroy the principle of union, but the power of
maintaining free government in the victorious States.




66                   FREE GOVERNMENT.
What we want, in any event, is free government. With that,
we cannot fail.  It is that we have had.  It gave us greater
prosperity, more happiness and less misery, than any other people
ever had enjoyed. It was, too, the freest system; assured a nearer
approach to equality, a more general distribution of labor and
capital; it had more inherent elements of strength, political and
geographical, more positive power for good, and a higher and nobler
mission, than any other. It recognized what we call the institution
of slavery-an apparent incongruity, we admit, of which we shall
speak in another place; but it was so constituted, that no citizen
or State or party could have an anti-slavery mission, for the simple
reason, that no citizen or State or party could right fully alter or
modify one single law of another State, or one single provision of
the compact of Union. It was understood that a violation of this
principle would cause a sort of leak in the vessel of state, capable
of wasting all that was valuable within. This is no new idea, on
the subject of legal government; but it is peculiarly applicable to
our compound system, because the Union is a government, not of
persons, but of States.
It is this feature of the system which makes it necessary to
recognize two legal parties-the people of the States, on the one
hand, and federal representatives or agents, on the other-both being
amenable to the law. It would indeed be a strange anomaly in a
free government, if the people should be held to account, and not
the agent or representative.  The scheme was based on the
idea that both might offend, and that both should be held
responsible to the law.  It is too common for the former to
regard themselves as bound to submit to the dictation of the
latter-to confound power with right-to admit, in all cases, the
duty of obedience to whatever is exacted, on the part of political
representatives. This is not only a great practical error, but one
which, if carried out, can hardly fail to overthrow the best popular
government which it is in the power of wisdom and patriotism to
establish.
It destroys, at once, the equilibrium  of the system, by taking
away its representative character, and removing from it the prin



THE JUDICIARY.                       67
ciple of accountability, without which it is not easy to see how a
government of laws is to be maintained.
Every citizen is clothed with legal authority to make resistance
to such laws or ordinances as he may deem to be unconstitutional
and therefore void. The judicial department was created expressly
to enable him  to appeal from  the law-making and the executive
power. It is the only check he is able to put upon Congress and
the President, when his rights are invaded or his liberty taken away
by unauthorized legislation or executive acts.  The judiciary,
in such cases, is not only the state, but the only possible means of
avoiding either tame submission to arbitrary laws, on the one
hand, or open resistance, on the other.
On this subject, more than any other, we have the most interesting and timely events of British history to aid us.  The struggle
for the free system of English laws, which commenced under the
Saxons, and which can hardly be said to have ended till after the
close of the Napoleonic wars, discloses,'at every stage of its progress, an inflexible purpose to maintain, at every cost and sacrifice,
the complete independence of the judiciary.  This has evidently
been regarded. from the beginning, as the corner stone and foundation of the political edifice.  It has been, indeed, a struggle
between the crown and the courts-a struggle for dominion on the
one side, and for the right of impartial and independent judgment
on the other.
In the days of feudal government, it will be remembered, to the
date of Magna Charta, the divine right of the king to reign, and
passive obedience, were almost universally recognized. The executive government had all the advantages of prescription and
established political habits. Those who have studied the practical
events of history, will understand the magnitude and strength of
those powers of state.  The assailants of the crown came to their
work with ideas alone. It was ideas that made war upon the
whole scheme of royal prerogatives. It was a war of reason, of
philosophy, of rational liberty, against effete, decrepit forms,
against blind, stupid convictions, and Asiatic habits and customs.
It was this war which gave England the purest and ablest literature, the highest judiciary, and the greatest statesmen, philos



68                   FREE GOVERNMENT.
ophers and historians. It made it apparent to all the world, that
no mere despotism, however protected by bayonets, can maintain
itself against the forces of reason and the searching power of truth.
It is a singular feature of American and English history, that
while the people of this country, since the establishment of the
Government of the Union, have manifested a tendency at least to
increase the powers of their chief magistrate, and to sustain and
justify the exercise of almost every act of doubtful constitutional
authority; the people of England have struggled through centuries to strip their king of quite all authority, to increase the
powers of their legislature, and to make their judiciary an independent tribunal having jurisdiction over both.
This anomaly is the more remarkable, because the people of
the States, especially during the last thirty years, have continued
to withdraw authority from their governors; insomuch, that in
many cases, they have left little more than a name to distinguish
the office.
But there is a lesson of profound interest to the American
people and to the friends of free government everywhere in these
events of history. They disclose the workings of two governments,
both based upon principles of popular liberty, both successful,
beyond all precedent, in whatever marks the prosperity of the
people, in education, industry, enterprise, the distribution of labor,
the accumulation of wealth, both starting substantially upon the
same mission, but suddenly, as if controlled by some supernatural
power, thrown as widely from parallel lines of administration as
those which mark the governments of the Asiatic and European
races.  The point of separation is exactly where we abandoned the
judiciary.
The exercise of unconstitutional powers by the executive and
legislative departments was a mere political offence, so long as the
judiciary remained in freedom; because the right and the agencies
of punishment still existed. So long there was the means to hold
official delinquents to account. Their enforcement might, indeed,
have been difficult, and in many cases impossible. The law was
violated, but not set aside.  The machinery of government was
perfect, though the engineer had neglected his duties.




THE JUDICIARY.                            C 9
Impeachment, it must be remembered, is not the only process
of punishment for official delinquents.  That process is one prescribed in certain  cases in order to  establish the right of their
removal from  place.   Violations of the rights of persons carry
with them  direct responsibility to injured parties.  These parties
may resort to  the  tribunals of justice.   When  the  latter are
stricken down, their remedy is gone, and, with it, all accountability
and legal responsibility of official trespassers upon the rights of the
people.  The overthrow of the judiciary is always the first step of
those who aspire to supreme control.
Ni OTES.
1. The responsibility of all federal agents to injured parties is affirmed in the
following decision of the Supreme Court: " These orders given by the Executive
under the construction of the act of Congress made by the department to which
its execution was assigned, enjoin the seizure of American vessels sailing from
a French port. Is the officer who obeys them liable for damages sustained by
this misconstruction of the act, or will his orders excuse him? If his instructions afford him no protection, then the laws are legally awarded against him; if
they excuse an act not otherwise excusable, it would then be necessary to inquire whether this is a case in which the probable cause which existed to induce a
suspicion that the vessel was American would excuse the captor from damages
when the vessel appeared, in fact, to be neutral.
" I confess, the first bias of my mind was very strong in favor of the opinion
that though the instructions of the Executive could not give a right, they might
yet excuse from damages. I was much inclined to think that a distinction ought
to be taken between acts of civil and those of military officers; and between
proceedings within the body of the country and those on the high seas. That
implicit obedience which military men usually pay to the orders of their superiors, which, indeed, is indispensably necessary to every military system, appeared to me strongly to imply the principle that those orders, if not to perform
a prohibited act, ought to justify the person whose general duty it is to obey
them, and who is placed by the laws of his country in a situation which in general requires that he should obey them. I was strongly inclined to think that
where, in consequence of orders from the legitimate authority, a vessel is seized
with pure intention, the claim of the injured party for damages would be against
the Government from which the orders proceeded, and would be'a proper subject
for neootiation. But I have been convinced that I was mistaken, and I have




70                        FREE GOVERNMENT.
receded from this first opinion. I acquiesce in that of my brethren, which is,
that the instruction cannot change the nature of the transaction, or legalize an
act which, without those instructions, would have been a plain trespass."
2. Chief-Justice Marshall defines with wonderful accuracy the character of
the government and the great offices of the judiciary in the following lucid exposition:
"This, then, is a plain case for a mandamus, either to deliver the commission, or a copy of it from the record; and it only remains to be inquired,
"Whether it can issue from this court. The act to establish the judicial
courts of the United States authorizes the Supreme Court'to issue writs of
mandamus, in cases warranted by the principles and usages of law, to any courts
appointed, or persons holding office, under the authority of the United States.'
" The Secretary of State, being a person holding an office under the authority of the United States, is precisely within the letter of the description, and
if this court is not authorized to issue a writ of mandamus to such an officer, it
must be because the law is unconstitutional, and therefore absolutely incapable
of conferring the authority and assigning the duties which its words purport to
confer and assign.
"' The Constitution vests the whole judicial power of the United States in
one Supreme Court, and such inferior courts as Congress shall, from time to
time, ordain and establish. This power is expressly extended to all cases arising under the laws of the United States; and, consequently, in some form, may
be exercised over the present case; because the right claimed is given by a law
of the United States.
" In the distribution of this power it is declared that' the Supreme Court
shall have original jurisdiction in all cases affecting ambassadors, other public
ministers and consuls, and those in which a State shall be a party. In all other
cases the Supreme Court shall have appellate jurisdiction.'
"It has been insisted, at the bar, that, as the original grant of jurisdiction
to the supreme and inferior courts is general, and the clause assigning original
jurisdiction to the Supreme Court contains no negative or restrictive words; the
power remains to the legislature to assign original jurisdiction to that court in
other cases than those specified in the article which has been recited; provided
those cases belong to the judicial power of the United States.
" If it had been intended to leave it in the discretion of the legislature to apportion the judicial power between the supreme and inferior courts according to
the will of that body, it would certainly have been useless to have defined the
judicial power, and the tribunals in which it should be vested. The subsequent
part of the section is mere surplusage, is entirely without meaning, if such is to
be the construction. If Congress remains at liberty to give this court appellate
jurisdiction, where the Constitution has declared their jurisdiction shall be original; and original jurisdiction where the Constitution has declared it shall be




THE JUDICIARY.'"1
appellate; the distribution of jurisdiction, made in the Constitution, is form
without substance.
"Affirmative words are often, in their operation, negative of other objects
than those affirmed; and in this case a negative or exclusive sense must be
given to them, or they have no operation at all.
"It cannot be presumed that any clause in the Constitution is intended to
be without effect; and, therefore, such a construction is inadmissible, unless the
words require it.
"If the solicitude of the convention, respecting our peace with foreign
powers, induced a provision that the Supreme Court should take original jurisdiction in cases which might be supposed to affect them; yet the clause would
have proceeded no farther than to provide for such cases, if no farther restriction on the powers of Congress had been intended. That they should have appellate jurisdiction in all other cases, with such exceptions as Congress might
make, is no restriction, unless the words be deemed exclusive of original
jurisdiction.
"' When an instrument organizing fundamentally a judicial system, divides it
into one supreme and so many inferior courts as the legislature may ordain and
establish; then enumerates its powers, and proceeds so far to distribute them as
to define the jurisdiction of the Supreme Court by declaring the cases in which
it shall take original jurisdiction, and that in others it shall take appellate jurisdiction; the plain import of the words seems to be, that in one class of cases its
jurisdiction is original, and not appellate; in the other it is appellate, and not
original. If any other construction would render the clause inoperative, that is
an additional reason for rejecting such other construction, and for adhering to
their obvious meaning.
" To enable this court then to issue a mandamus, it must be shown to be an
exercise of appellate jurisdiction, or to be necessary to enable them to exercise
appellate jurisdiction.
" It has been stated, at the bar, that the appellate jurisdiction may be exercised in a variety of forms, and that if it be the will of the legislature that a mandamus should be used for that purpose, that will must be obeyed. This is true,
yet the jurisdiction must be appellate, not original.
"' It is the essential criterion of appellate jurisdiction that it revives and corrects the proceedings in a cause already instituted, and does not create that
cause. Although, therefore, a mandamus may be directed to courts, yet to issue
such a writ to an officer for the delivery of a paper is in effect the samle as to
sustain an original action for that paper, and, therefore, seems not to belong to
appellate, but to original jurisdiction. Neither is it necessary in such a case as
this to enable the court to exercise its appellate jurisdiction.
" The authority, therefore, given to the Supreme Court, by the act establishing the judicial courts of the United States, to issue writs of mandamus to public officers, appears not to be warranted by the Constitution; and it becomes
necessary to inquire whether a jurisdiction so conferred can be exercised.




72                       FREE  GOVERNMENT.
"The question whether an act, repugnant to the Constitution, can become the
law of the land, is a question deeply interesting to the United States; but, happily, not of an intricacy proportioned to its interest. It seems only necessary
to recognize certain principles, supposed to have been long and well established,
to decide it.
"That the people have an original right to establish for their future government such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. The
exercise of this original right is a very great exertion; nor can it, nor ought it
to be frequently repeated. The principles, therefore, so established, are deemed
fundamental. And as the authority from which they proceeded is supreme,
and can seldom act, they are designed to be permanent.
"The original and supreme will organizes the Government, and assigns to
different departments their respective powers. It may be either stopped here,
or establish certain limits not to be transcended by those departments.
" The Government of the United States is of the latter description. The
powers of the legislature are defined and limited; and that those limits may not
be mistaken or forgotten, the Constitution is written. To what purpose are
powers limited, and to what purpose is that limitation committed to writing, if
these limits may at any time be passed by those intended to be restrained? The
distinction between a government with limited and unlimited powers is abolished
if those limits do not confine the persons on whom they are imposed, and if acts
prohibited and acts allowed are of equal obligation. It is a proposition too
plain to be contested, that the Constitution controls any legislative act repugnant to it; or, the legislature may alter the Constitution by an ordinary act.
"Between these alternatives there is no middle ground. The Constitution is
either a superior, paramount law, unchangeable by ordinary means, or it is on a
level with ordinary legislative acts, and, like other acts, is alterable when the
legislature shall please to alter it.
"If the former part of the alternative be true, then a legislative act contrary to
the Constitution is not law; if the latter part be true, then written constitutions
are absurd attempts, on the part of the people, to limit a power in its own
nature illimitable.
" Certainly all those who have framed written constitutions contemplate them
as forming the fundamental and paramount law of the nation, and consequently
the theory of every such government must be, that an act of the legislature repugnant to the Constitution is void.
" This theory is essentially attached to a written constitution, and is consequently to be considered, by this court, as one of the fundamental principles of our
society. It is not therefore to be lost sight of in the further consideration of
this subject.
"If an act of the legislature repugnant to the Constitution is void, does it,
notwithstanding its invalidity, bind the courts, and oblige them to give it effect?
Or, in other words, though it be not law, does it constitute a rule as operative as




THE JUDICIARY.                                73
if it was a law? This would be to overthrow in fact what was established in
theory, and would seem, at first view, an absurdity too gross to be insisted on.
It shall, however, receive a more attentive consideration.
"It is emphatically the province and duty of the judicial department to say
what the law is.  Those who apply the rule to particular cases, must of necessity expound and interpret that rule.  If two laws conflict with each other, the
courts must decide on the operation of each.
"So if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the court must either decide that case
conformably to the law, disregarding the Constitution, or conformably to the
Constitution, disregarding the law, the court must determine which of these
conflicting rules governs the case. This is of the very essence of judicial duty.
" If then the courts are to regard the Constitution,-and the Constitution is
superior to any ordinary act of the legislature,-the Constitution, and not such
ordinary act, must govern the case to which they both apply. Those then who
controvert the principle that the Constitution is to be considered in court as a
paramount law, are reduced to the necessity of maintaining that courts must close
their eyes on the Constitution, and see only the law.'' This doctrine would subvert the very foundation of all written constitutions.
It would declare that an act which, according to the principles and theory of our
government, is entirely void, is yet, in practice, completely obligatory. It would
declare that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving
to the legislature a practical and real omnipotence, with the same breath which
professes to restrict their powers within narrow limits.  It is prescribing limits,
and declaring that those limits may be passed at pleasure.
"That it thus reduces to nothing what we have deemed the greatest improvement on political institutions-a written constitution-would of itself be sufficient, in America, where written constitutions have been viewed with so much
reverence, for rejecting the construction.  But the peculiar expressions of the
Constitution of the United States furnish additional arguments in favor of its rejection.
"The judicial power of the United States is extended to all cases arising under
the Constitution.
"Could it be the intention of those who gave this power to say that, in using
it, the Constitution should not be looked into? That a case arising under the
Constitution should be decided without examining the instrument under which
it arises?
"This is too extravagant to be maintained. In some cases then the Constitution must be looked into by the judges.  And if they can open it at all, what
part of it are they forbidden to read or to obey?
" There are many other parts of the Constitution which serve to illustrate this
subject.
"It is declared that'no tax or duty shall be laid on articles exported from
4




74                        FREE GOVERNMENT.
any State.' Suppose a duty on the export of cotton, of tobacco, or of flour, and
a suit instituted to recover it; ought judgment to be rendered in such a case?
ought the judges to close their eyes on the Constitution and only see the law?
"The Constitution declares that'no bill of attainder or ex post facto law shall
be passed.'
" If, however, such a bill should be passed, and a person should be prosecuted
under it, must the court condemn to death those victims whom the Constitution
endeavors to preserve?
"'No person,' says the Constitution,'shall be convicted of treason unless
on the testimony of two witnesses to the same overt act, or on confession in open
court.'
"' Here the language of the Constitution is addressed especially to the courts.
It prescribes, directly for them, a rule of evidence not to be departed from. If
the legislature should change that rule, and declare one witness, or a confession
out of court sufficient for conviction, must the constitutional principle yield to
the legislative act?
"From these, and many other selections which might be made, it is apparent
that the framers of the Constitution contemplated that instrument as a rule for
the government of courts as well as the legislature.
" Why otherwise does it direct the judges to take an oath to support it?  This
oath certainly applies, in an especial manner, to their conduct in their official
character. How immoral to impose it on them if they were to be used as the
instruments, and the knowing instruments, for violating what they swear to support!
" The oath of office too, imposed by the legislature, is completely demonstrative of the legislative opinion on this subject. It is in these words: "I do
solemnly swear that I will administer justice without respect to persons, and will
do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as    -, according to the
best of my abilities and understanding, agreeably to tlhe Constitution and laws of
the United States.'
" Why does a judge swear to discharge his duties agreeably to the Constitution
of the United States, if that Constitution forms no rule for his government-if it
is closed upon him, and cannot be inspected by him?
" If such be the real state of things, it is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime.
"It is also not entirely unworthy of observation, that in declaring what shall
be the supreme law of the land, the Constitution itself is first mentioned; and not
the laws of the United States generally, but those only which shall be made in
puersuance of the Constitution, have that rank.
" Thus the particular phraseology of the Constitution of the United States confirms and strengthens the principle supposed to be essential to all written constitutions-that a law repugnant to the Constitution is void, and that courts, as well
as other departments, are bound by that instrument."




THE JUDICIARY.                             75
3. Speaking of the attack upon security in France under the monarchy, Ben.
tham says, under the head of General Confiscations: " I refer to this head those
vexations exercised upon a sect, upon a party, upon a class of men, under the
vague pretence of some political offence, in such manner that the imposition of
the confiscation is pretended to be employed as a punishment, when in truth the
crime is only a pretence for the imposition of the confiscation. History presents
many examples of such robberies. The Jews have often been the object of them;
they were too rich not to be always culpable. The financiers, the farmers of the
revenue, for the same reason, were subjected to what were called 6urning chambers. When the succession to the throne was unsettled, everybody, at the death
of the sovereign, might become culpable, and the spoils of the vanquished formed
a treasury of reward in the hands of the successor.  In a republic torn by factions, one half of the nation became rebels in the eyes of the other half. When
the system of confiscations was admitted, the parties, as was the case at Rome,
alternately devoured each other.
" The crimes of the powerful, and especially the crimes of the popular party
in democracies, have always found apologists.'The greater part of these large
fortunes,' it has been said,'have been founded in injustice, and that was only
restored to the public which had been stolen from the public.' To reason in this
manner is to open an unlimited career to tyranny; it is to allow it to presume the
crime, instead of proving it. Ought so grave a punishment as confiscation to be
inflicted by wholesale, without examination, without detail, without proof?  A
procedure which would be deemed atrocious if it were employed against a single
person; does it become lawful when employed against an entire class of citizens?
Can the evil which is done be disregarded because there is a multitude of sufferers whose cries are confounded together in their common shipwreck?"
4. Commenting upon the fallacies in the Declaration of Rights by the French
National Assembly in 1791, Jeremy Bentham remarks on its declaration that
" All men are born and remain free, and equal in respect of rights: "
"All men are born free?  All men remain free?  No, not a single man;
not a single man that ever was, or is, or will be. All men, on the contrary, are
born in subjection, and the most absolute subjection-the subjection of a helpless
child to the parents on whom he depends every moment for his existence. In
this subjection every man is born-in this subjection he continues for years-for
a great number of years-and the existence of the individual and of the species
depends upon his so doing.
"What is the state of things to which the supposed existence of these supposed rights is meant to bear reference?-a state of things prior to the existence of government, or a state of things subsequent to the existence of
government? If to a state prior to the existence of government, what would
the existence of such rights as these be to the purpose, even if it were true,
in any country where there is such a thing as government?  If to a state
of things subsequent to the formation of government-if in a country where




'76                     FREE GOVERNMENT.
there is a government, in what single instance-in the instance of what single
government is it true? Setting aside the case of parent and child, let any man
name that single government under which any such equality is recognized.
"All men born free? Absurd and miserable nonsense! When the great
complaint-a complaint made perhaps by the very same people at the same
time, is-that so many men are born slaves. Oh! but when we acknowledge
them to be born slaves, we refer to the laws in being, which laws being void,
as being contrary to those laws of nature which are the efficient causes of those
rights of man that we are declaring, the men in question are free in one sense,
though slaves in another-slaves and free at the same time-free in respect of
the laws of nature-slaves in respect of the pretended human laws, which, though
called laws, are no laws at all, as being contrary to the laws of nature. For such
is the difference-the great and perpetual difference betwixt the good subject,
the rational censor of the laws, and the anarchist-between the moderate man
and the man of violence. The rational censor, acknowledging the existence of
the law he disapproves, proposes the repeal of it; the anarchist, setting up his
will and fancy for a law before which all mankind are called upon to bow down
at the first word-the anarchist, trampling on all truth and decelcy, denies the
validity of the law in question-denies the existence of it in the character of
law, and calls upon all mankind to rise up in a mass and resist the execution
of it.
"All men are born equal in rights. The rights of the heir of the most indigent equal to the rights of the heir of the most wealthy? In what case is this
true?
" All men (i. e., all human creatures of both sexes) remain equal in rights.
The apprentice then is equal in rights to his master; he has as much liberty
with relation to the master as the master has with relation to him; he has as
much right to command and to punish him; he is as much owner and master of
the master's house as the master himself. The case is the same as between
ward and guardian. So again as between wife and husband. The madman has
as good a right to confile anybody else as anybody else has to confine him.
The idiot has as much right to govern everybody as anybody can have to govern
him. The physician and the nurse, when called in by the next friend of a sick
man seized with a delirium, have no more right to prevent his throwing hinlself
out of the window, than he has to throw them out of it. All this is plainly and
incontestably included in this article of the Declaration of Rights; in tile very
words of it, and in the meaning-if it have any ineaning. Was this the meaning
of the authors of it?-or did they mean to admit this explanation as to some of
the instances, and to explain the article away as to the rest? Not being idiots,
nor lunatics, nor under a delirium, they would explain it away with regard to
the madman, and the man under the delirium. Considering that a child may
become an orphan as soon as it has seen the light, and that in that case, if not
subject to government, it must perish, they would explain it away, I think, and
contradict themselves, in the case of the guardian and ward. In the case of




THE JUDICIARY.                             77
master and apprentice I would not take upon me to decide; it may have been
their meaning to proscribe that relation altogether-at least this may have been
the case, as soon as the repugnancy between that institution and this oracle was
pointed out; for the professed object and destination of it is to be the standard
of truth and falsehood, of right or wrong, in everything that relates to government. But to this standard, and to this article of it, the subjection of the apprentice to the master is flatly and diametrically repugnant. If it do not proscribe and exclude this inequality, it proscribes none; if it do not do this mischief, it does nothing.
"So again, in the case of husband and wife. Amongst the other abuses
which the oracle was meant to put an end to, may, for aught I can pretend to say,
have been the institution of marriage. For what is the subjection of a small and
limited number of years in comparison of the subjection of a whole life? Yet
without subjection and inequality no such institution can by any possibility take
place; for of two contradictory wills, both cannot take effect at the same time.
" The same doubts apply to the case of master and hired servant. Better a
man should starve than hire himself; better half the species starve than hire
itself out to service. For, where is the compatibility between liberty and servitude? How can liberty and servitude subsist in the same person? What
good citizen is there that would hesitate to die for liberty?-and, as to those
who are not good citizens, what matters it whether they live or starve? Besides that, every man who lives under this constitution being equal in rights,
equal in all sorts of rights, is equal in respect to rights of property. No man,
therefore, can be in any danger of starving-no man can have so much as that
motive, weak and inadequate as it is, for hiring himself out to service."
5. " For the destruction of everything by which the constitution of this country
has ever been distinguished to its advantage, no additional measures need be employed; let but the principles already avowed continue to be avowed-let but
the course of action dictated by those principles be persevered in-the consummation is effected. As for the Habeas Corpus Act, better that the statute book
were rid of it. Standing or lying as it does, up one day, down another, it serves
but to swell the list of sham securities with which, to keep up the delusion, the
pages of our law books are defiled.  When no man has need of it, then it is that it
stands; comes a time when it might be of use, and then it is suspended."-BzENTHAM.
6. The letter of Napoleon to M. Fouchb, his Minister:
" M. FouCHE: I read in The Journal de l'Enmpire of the 9th instant that at the
end of a comedy, by Colin d'Harleville, this note occurs:
"' Seen and permitted the printing and sale, pursuant to the decision of his
Excellency, the Minister of General Police Senator. Dated 9th of this month.
By order of his Excellency,                          P. LAGARDE,' Chief of the Division of the Liberty of the Press.'
"I am astonished at these new forms, which the law only could authorize.




'78                     FREE GOVERNM:ENT.
If it were proper to establish a censorship, it could not be established without
my permission. When my will is that the censorship shall not exist, I have a
right to be surprised at seeing in my empire forms which may be good at Vienna
and Berlin. If these be the result of an old usage, send me a report on it. I have
a long time calculated the means of reestablishing the social edifice, and now I am
obliged to watch over the maintenance of public liberty. I do not mean that the
French should become serfs. In France, all that is not prohibited is permitted;
and nothing can be prohibited except by the laws and the tribunals, or by measures of high police, where public morals and public order are concerned. I repeat, I will not have a censorship; because every bookseller answers for the
work he puts into circulation; because I have no wish to be responsible for the
nonsense that may be printed; and because I will not allow a mere clerk to
tyrannize over mind and mutilate genius.                   NAPOLEON."




CHAPTER IV.
THE HABEAS CORPUS ACT.
ITS LEGAL OFFICE-NECESSARY TO FREE GOVERNMENT-HOW SUSPENDED-THE
RIGHT OF THE PRESIDENT AND CONGRESS DENIED-ORIGINATED WITH USSUBORDINATION OF THE MILITARY POWER-CONSTITUTION SUSPENDED BY
OVERTHROW OF JUDICIARY —MILITARY GOVERNMENT A USURPATION-HABITS
AND TRADITIONS A PART OF OUR SYSTEM-DEMORALIZING EFFECTS OF MILITARY RULE UPON THE CIVIL POWER.
TIHE Act of Habeas Corpus simply provides that all persons
deprived of their liberty, shall have the right to demand a review
of the proceedings of magistrates or others leading thereto.  This
right is utterly valueless to guilty parties, and was given solely in
the interest of accused or suspected persons, in order that the
innocent may be protected against the tyranny or usurpation of
those in authority. The Constitution of the United States makes
it a part of our political system, not by express provision, but by
the restriction it imposes upon the authorities, in reference to its
suspension.  It existed in all the States of the original confederation, and, as was evidently supposed, transmitted to the government of the United States, as a settled element in a free system
of laws.
It is one of those provisions which can be removed only by
showing that freedom is an evil, and absolutisln a benefit. It is
incapable of doing the least damage to a free state, of preventing
the execution of the least rightful authority, of shielding offenders,
or in any way defeating the ends of justice.
It constitutes a sort of reserve force against those intrusted
with the right of arrest, with power to keep them within the scope
of the laws, and with no other authority whatever. It is purely
protective in all its features; to the state, because it is the. compass of its administration; to the citizen, because, while it never




80                   FREE GOVERNMENT.
shields an offender, it never permits innocent parties to be confounded with the guilty.
Among the many perplexing anomalies which have arisen in
the course of our political career, the disclosure of hostility to the
free exercise of the rights of the Habeas Corpus Act, is the most
difficult of solution. With no party or citizen who dares to oppose
it, we find it suspended, not, according to the Constitution, by the
supervening power of the army, in cases and places of rebellion,
but by the proclamation of the President of the United States, over
the entire Union.
The right to suspend the writ is given in these words (1st Art.,
9th sec., Con. U. S.):
" The privilege of the writ of habeas corpus shall not be
suspended, unless when in cases of rebellion or invasion the public
safety may require it."
It will be observed that the authority of suspension is here
declared, while nothing is said of the manner or by whom it may
be done. In the absence of all reflections upon the nature of the
government, and of the State systems, existing at the time of the adoption of the Constitution, the inference would be fair, that the President of the United States might legally take jurisdiction of the
case and suspend the writ.  But it is clearly seen that no such power
was ever intended to be lodged in his hands, simply because, by
another provision of the Constitution, he is made commander-in-chief
of the army. It is not possible that the head of the army was
clothed with affirmative power to subordinate the least civil
authority to his command.
In this case, too, we have the origin of the writ, as it were, in
our own family. It grew out of a controversy involving the alleged
right of the Crown of England to imprison, at will, its subjects.
This right the people not only denied, but affirmed that they would
be held alone in answer to the laws. In order to effect this great
end of free government, they enacted that all freemen should have
the right to be heard before the courts, whenever their liberties
had been taken away without due warrant of law. This was no
mnore than a simple declaration that they would be governed by
laws, and not by the arbitrary will of an executive magistrate.




THE HABEAS CORPUS ACT.                    81
All this, we repeat, is a part of the record of our own political
household. It was the work, in a legal sense, of our own people.
It is our own history. Its honor, and its example, are ours. We
cannot go behind it, without an open abandonment of free government.
It is clear, then, that the President was clothed with no authority to suspend the writ; and such, we apprehend, is the almost
unanimous opinion of the country.
The right of the legislative department to do in this case what
principle, policy, and history concur in denying to the executive, is
another and far more important question.  It is more important,
simply because that department has assumed to exercise the power
of suspension. It has ordained a precedent, and although it may
not be received as good law that congressional legislation is proof
of constitutional right, yet it is undeniably true that there are
many persons-far too many-who are satisfied with this kind of
reasoning.
We well understand, that a denial of the right of Congress or
the President, to suspend the privilege of the writ imposes upon
the person who urges it, the duty of showing by what authority and
action it may be suspended.
It is impossible to overlook, in discussing the subject, not only
the character of the Union, but of the States which created it.
Nowhere else in the world was there a system of laws more absolutely free, or a people more resolute or vigilant in their maintenance. What was prominent over every other matter of government,
was their resolution to maintain, at all times and in all exigencies, the
complete subordination of the military to the civil authority. This
was not a mere theory or fancy of the day, but a great law of public opinion, of universal acceptation and government.
It is hardly possible that such a people, not only jealous of
military rule, but expressing fears of the domineering civil power
of the Union, should so construct the latter as directly or indirectly
to be able to violate this fundamental idea of freedom.  If Congress
may suspend the writ or authorize its suspension, though it places
before the President one impediment to the exercise of irresponsible power, it does not close the door against it, as was the evident
4*




82                   FREE GOVERNMENT.
purpose of the States in creating the Union.  It makes it little
better, that Congress instead of the President has authority to
break down the barrier between the civil and the military power.
That barrier was universally regarded as necessary to the preservation
of the former and the control of the latter. The governments of the
States and the Union are purely civil institutions.  In no event
was it intended that they should be anything else.   Military
authority, as an element of government, was never contemplated.
The army was recognized as sheriffs, marshals, and other ministerial officers were recognized, to perform ministerial duties, not
legislative or judicial. There was no original authority placed in
its hands.  Its duty was to obey, not make laws.  It possessed
neither peace nor war powers, of a civil or political nature.
How are we then justified in the conclusion that either Congress
or the President is authorized to suspend the writ? Such suspension, if legal, inaugurates the military head of the nation, and of
necessity makes it supreme over all civil institutions; for it is the
right of every people to have government.
If military rule was not contemplated by the States, if its subordination to the civil authority was universally demanded, is it not
morally impossible that the framers of the Constitution should have
conferred upon Congress the least authority to emasculate the
judiciary?
What need was there for inserting in that compact its stringent
prohibitions against' the arbitrary exercise of authority over persons
and property, if, by a sweeping power, they intended to permit their
practical suspension by Congress on precisely the occasions when
power is most likely to be abused?
Were civil institutions of such doubtful utility and efficiency,
that they could be trusted only in peace?
From what events in our own or the history of England, was it
determined that military government may be inaugurated over the
whole country " in cases of rebellion or invasion" in any particular
part of it?
Was rebellion, in one State, regarded as sufficient to deprive the
people of all the others of their civil institutions?
It is obvious to the least-informed person that no authority is




THE HABEAS CORPUS ACT.                    83
conferred upon Congress to suspend the writ. Yet it may be suspended, and in such manner and place as to effect the end desired,
the invigoration of the civil authorities, without inflicting a fatal
wound upon the body politic. The Constitution, we repeat, is
silent touching the manner and the authority to suspend the writ.
Granting the right, we are restricted in its enforcement, at least to
the limits of its previous exercise by the governments of the States.
In other words, the status of the military had been fixed, by an
irrepealable law of public sentiment in this country and England,
and we have no right, on the authority of the vague grant in question, to interfere with that status. We have no right to infer,
simply because the right of suspension is conceded, that it may be
carried out so as to confer authority upon the military to assume
superior control over the laws of the United States, and the States.
If those laws, in a particular place or locality, are menaced or overthrown, by rebellion or invasion, the best thing the civil authorities
can do, is to invoke the aid of the military; for it is then that the
public safety is endangered, and it is then, and then only, that the
latter is warranted to supervene, and assume control, to the end that
the civil administration may go on with its peaceful work.  Meanwhile, in every other part of the Union the example of absolute
civil government, within the scope of the laws, is held up to the
rebels or insurgents of the disaffected district or section.  By this
simple theory of the case, the great end sought to be attained, the
maintenance of the Union, is achieved, without the least infringement of the system.  We can better afford to lose the General
Government, than the general character of the people as the peculiar guardians of liberty. It will be much easier to reconstruct the
former than to recover the latter when lost.
Rebellion consists of combinations to resist or overthrow the
laws of the state. When it becomes so formidable as to endanger the
public safety-which means, we repeat, the inability of the civil
power to enforce the laws within the circle of the disaffection it
is the right of the military to suspend the writ. There would
seem to be no right to further invade the ordinary functions of the
judiciary, because that department is coequal with the legislative
and the executive, and there is no semblance of authority to inter



84                   FREE GOVERNMIENT.
fere with its duties beyond that of the suspension of this particular
warrant. General Jackson at New Orleans disregarded the command of the judiciary, " in time of war; " and was subsequently fined
for contempt. HJe paid the amount cheerfully, and with it, that
deference to the supremacy of the civil power, which he never
failed to assert over the military. The fine was subsequently refunded to him, by direction of Congress, which was a testimonial
to his integrity, without any confession of his right to disregard
the orders of the court. He might well have maintained, had
that been the question, that by virtue of the grant now under
discussion, his suspension of the writ was so far legal as to exempt
him from liability to injured persons on account of the act.  But
even then, his exemption could only be established by showing that
the public safety demanded it.
The language of the Constitution partakes far more of the
character of a guarantee of the rights of the Habeas Corpus Act,
than of a delegation of. power to suspend it. It reads: " The
privilege of the writ shall not be suspended," except in certain
cases of " rebellion or invasion."   The means of judging when the
public safety may require it, is necessarily confined to the authorities of the locality. This was peculiarly so when the Constitution was adopted. It exhibits, we imagine, the intention of its
framers.  Had it been their purpose to confer the right upon Congress, they would surely have said so.  If it was their purpose
to provide for local contingencies, they would most naturally have
entrusted the right with persons of the place, who could best
determine when the public safety is endangered and therefore the
suspension required.
Nothing is better established than that the governments of the
States and the Union are purely civil governments.  Mlilitary
authority is not only no part of their polities, but is excluded
from their administration, by positive law and long and well settled
national habits and traditions. This is confirmed by the whole
analogy of the governments of the States and the Constitution of
the United States. As Hume says of England. " A free monarchy,
in which every individual is a slave, is a glaring contradiction."'
There is, we maintain, in these habits and traditions, a moral power




THE HABEAS CORPUS ACT.                   85
scarcely less cogent and binding than the obligations of the Con.
stitution and laws. They constitute the very basis of government.
It was the violation, on the part of England, of these traditional
rights, far more than the actual sacrifice of material interests, that
led to the war of the Revolution. In the great act which declared our
separation, we proclaimed to the world that the king had " affected
to render the military independent of and superior to the civil
power; " that he had deprived us of " the benefits of trial by
jury; " that he had created new offences; that he had quartered
soldiers upon the people.
We allude to these records of history to show the force of
certain ideas or convictions, which, we maintain, constitute a part
of our free system of laws.
The authority claimed and exercised by Congress to suspend
the functions of the judiciary, or to authorize the President to do
so, is not only inconsistent then with the political governments of
the States and the Union, but in plain opposition to the national
habits and traditions of the people. Nothing short of absolute
necessity, involving, through its agency, the preservation of the
Union, could have justified the lodgment of such a power with the
army; and we are bound to show, before we acknowledge its existlance there, not only the great peril of the state, but that its exercise is necessary to its preservation.  There is a total absence of
words conveying authority to any particular person or department.
This leaves the clause to be construed by the application of general
principles, having in view, at all times, the character of the States
and the Union, and the habits and traditions of the people. Nor
must it be forgotten, that general rebellion, embracing all the States,
is quite impossible.  There will always be what we call loyal
States; for without loyal States there can be no pretence either
for rebellion or Union.  The proposition to cripple the civil
administration of the faithful, in order to conquer and subdue
the unfaithful, is too monstrous for consideration.  If punishment is to be inflicted, let it fall upon the transgressor. It is
enough for the loyal people that they employ themselves and
their means to put down the disloyal. They are limited in this
work to the enforcement of the laws.  They are willing to sacrifice




86                   FREE GOVERNMENT.
their blood and treasure to this end, but not their civil institutions, their freedom, and their manhood.
It is certainly more in consonance with our system to admit
the right of Congress to enact the suspension, than to lodge it in
the hands of the Executive. At least there is one objection less to
its exercise by the legislature than by the President. But it is
unnecessary and suicidal to confer it upon either.  That it has
been received and enforced by Congress, as a legislative grant, in
the most arbitrary and unjustifiable manner, is the very best proof
that it should not have been placed in the hands of that body.
The precedent goes for nothing, beyond the solemn warning it conveys to the people of the danger, disorder, and demoralization, which
must ever follow the surrender of the civil to the military power.
It is another impressive illustration of the principle we have
advanced, that too much power, in a free government, is a source of
weakness, rather than strength. It is undeniably true, in the present
instance, that the Union sentiment of the people has become fearfully weakened by this and kindred measures, which have gone far
to prove that free governments are made for sunshine and not for
the storm. Of course, such things indicate, if they have any
political significance at all, that the federal system was radically
defective, that it needed aid, not of military force, not of patriotism and determination on the part of the people to sustain it,
but of measures, which it failed to authorize, or worse yet, which
it positively prohibited. In this category we place the unwarranted
suspension of the writ of habeas corpus, the suppression of trial
by jury, of free speech and the press, and finally, the general inauguration of martial law, all over the Union.
If the right of suspension was conferred upon Congress or the
President, the language used being general, in respect to the extent
of its exercise, over all the territories of the Union, the power is
equally so. There is not a word of limitation, of this nature, in it.
"In cases of rebellion or invasion, when the public safety requires
it," the suspension is authorized.  This clearly contemplates cases
of rebellion in certain localities, and the inference is fair, that it
was intended to confine the act of suspension to the places or States
where it might exist.  It was very much the habit of the times




THE HABEAS CORPUS ACT.                    87
when the Constitution was adopted, to take a practical view of
things. To authorize the suspension of the writ in New York, because the people of Virginia had entered into rebellion against the
authority of the former State through that of the Union, would be
little less than absurd. It would certainly raise a reasonable presumption that New York was a party to the rebellion, and so on
through all the States.
This view is completely sustained by the proceedings of the Constitutional Convention, touching this particular grant.
The proposition to confer the power, in general and unqualified
terms, upon Congress, was embraced in Mr. Pinckney's plan of a
constitution, presented on the 20th of August, 1787. This particular subject came up, for consideration, on the 28th of the
same month, when Gouverneur Morris submitted a substitute for the
proposition of Mr. Pinckney, in these words:
~" The Privilege of the Writ of Habeas Corpus shall not be suspended, unless where in cases of rebellion or invasion the public
safety may require it."
There was no difference of opinion in the convention on the
first part of this substitute, viz.: " The privilege of the writ
of habeas corpus shall not be  suspended," it  was therefore
adopted nem. con.  The vote  on the remaining portion of the
substitute, to wit: "unless where in cases of rebellion or invasion
the public safety may require it," stood, seven States for it, and three
against it. So the Morris substitute, entire, was adopted.
This is the simple history of the adoption, by the convention, of
the clause in question, and afterward, so far as we can find, no reference is made to the subject. There was very decided opposition
made to giving power in any contingency to suspend the writ. It
was declared unnecessary, unsafe, and especially in the general and
unlimited form  proposed by Mr. Pinckney.  It was distinctly and
positively said, in behalf of the proposition to authorize the suspension on some terms, that its general suspension would be an impossibility, for it would signify that all the States might be in rebellion
at the same time, or that the civil establishment might be overthrown
in all the States at the same time.  Hence, in order to satisfy the
opponents of the power, Mr. Gouverneur Morris framed his substi



88                  PFREE GOVERMIENT.
tute in a negative form, authorizing the suspension only "WHERE, in
cases of rebellion or invasion, the public safety may require it."
How, and when, this significant word, WHERE, was lost, and " when "
put in its place, we cannot discover from the record.  The liMadison
Papers make no mention of the subject matter again after the 28th
of August, up to the reference of all the adopted provisions to the
committee on order and finish, from which the Constitution came
back for signature. There was no consideration, by the convention,
of this particular matter again. Whether the word "where," in
Mr. Morris' substitute, was so written that the copyist made it
"when," or whether the committee on form, without much reflection,
substituted the latter for the former, we leave to the curious to
determine.
Meanwhile the original design of the convention of the States is
made too clear to be disputed. Mr. Pinckney's general legislative
power of suspension was rejected; three States opposed any restriction; while seven States were willing to confer the power of suspension, where there should be rebellion or invasion. This simple history
of the origin of the grant, indicates the spirit and purpose of the
body which framed the Constitution.
There is no light in which the subject can be seen, which gives
the least color of authority to suspend the privilege of the writ, beyond the district, State, or section, which may be invaded or in rebellion. The design certainly was to uphold the Union and enforce
its laws. To this end the employment of the military was authorized. It is absurd to claim that the authority of the latter in such
" cases" is not limited to those in rebellion or the public enemy,
Not so, however, if the right to suspend the writ has been lodged
with Congress or the President, because they are two chief depart.
ments of the Federal Government, and the power being general in
its language, they may command it over all the United States, at
least so far as to interdict the Federal Judiciary.
The Union was ordained by sovereign States, actil)g separately
and remaining in the confederation with all their original powers of
government, excepting those which they delegated.  The delegated
powers are almost exclusively of a political nature, such as foreign
intercourse, commerce, and navigation, the regulation of the value,




THE HABEAS CORPUS ACT.                    89
of foreign coin, and so on through the whole range of the delegated
interests.   The Federal Judiciary was so constituted as to take
cognizance of these things, and at the same time, to act in obedience
to the civil institutions of the States —" to adopt and follow the decisions of the State courts," in the language of Chief-Justice Taney,
"' in all questions which concern merely the constitution and laws of
the State." When we reflect that titles to real estate and other kindred matters are almost exclusively determined by State laws, and
that the jurisdiction of the courts of the latter is absolute over
quite all the relations of the people, the reason of this obedience will
be seen.
In view of these things, how is it possible, in the absence of
direct and positive authority, to that end, to sustain the conclusion,
that the writ may be suspended over all the Union, including the
Federal and State Judiciary, by the mere enactment of Congress,
or the more summary process of Executive proclamation?
The least that can be said of such a proceeding, if the power is
conceded, is, that Congress is clothed with authority, in fact, to
change or overthrow the whole scheme of government. It is folly
to contend that an elective republic can be maintained on any other
basis than an untrammelled, independent judiciary.
It is most unlikely that a people, unreasonably jealous of the
aggregate civil powers of the Federal Union, would clothe any department thereof with the right and the means of overthrowing the
civil institutions of the States and transforming their Union into a
military despotism. All this is possible by the exercise of such a
power.  The first step in the progress of the transformation, is the
removal of a tribunal which has exclusive power to judge of the
constitutionality of the acts of both Congress and the President.
But it is answered, it is the suspension only of a single function
of the courts, and that, in all other respects, they are as free to
act, within the scope of the law, as before.
If this special pleading has any force, it proves too much. If
the courts are free to execute the laws, there can be no justification
for the suspension of the writ.  If the civil government is ample,
the intervention of the military is surely wanton. The writ of habeas corpus can do no injury to a free people, or a free state when




90                   FREE GOVERNMENT.
its laws are not obstructed by civil disabilities. It was ordained
in aid of the people, and expressly to prevent the violation of their
rights of person, by the arbitrary acts of those in authority   No
honest man ever sought the suspension of this great remedy, when
the courts were free to exercise their judicial functions.
It is not, then, the mere suspension of the writ which is demanded; it is the practical overthrow of the judicial power of the
state. So we find it. The President made it partial at first; and
followed the act almost immediately by the declaration of martial
law. Finding the two measures to work admirably in the interest
of consolidation, they were again followed by another proclamation,
suspending the writ in all the States and Territories of the Union.
But it was not alone, we repeat, the writ of habeas corpus that was
suspended; all the powers of the judiciary, State and Federal, were
either interdicted or placed under the actual government of military
commanders. These events are too recent and well authenticated
to be doubted or denied. We live to-day under the surveillance of
marshals and provost marshals; and are everywhere told, that the
President was authorized, by virtue of power conferred upon him
by Congress, drawn from an express constitutional grant, to do and
direct these things!
Having shown, as we think, that neither Congress nor the President has any legal right to suspend the writ, and that its suspension
is only authorized, in any event, over certain localities where the
overthrow of the civil authorities has been effected by " rebellion or
invasion," and then only by the supervening power of the army, we
now propose to discuss the legal limits of suspension, by whomsoever declared.
The subject comes before the country in the form of a paragraph
taken from the Constitution of the United States.  In another part
of that instrument a judicial department is authorized. In order
that we may be perfectly accurate, -we repeat entire the second section of the third article, which covers all the grants of power made
to the Federal Judiciary:
" The judicial Power shall extend to all cases, in law and equity,
arising under this Constitution, the laws of the United States, and
treaties made, or which shall be made, under their authority;-to all




THE HABEAS CORPUS ACT.                    91
cases affecting ambassadors, other public ministers, and consuls;-to
all cases of admiralty and maritime jurisdiction; —to controversies
to which the United States shall be a party; —to controversies between two or more States; —between a State and citizens of another
State; —between citizens of different States;-between citizens of
the same State, claiming lands under grants of different States, and
between a State or the citizens thereof, and foreign states, citizens,
or subjects."
The jurisdiction of the United States is here expressly limited
to specific relations, the first of which is by far the most important,
embracing " all cases arising under the Constitution, the laws of the
United States, and treaties made or which shall be made under
their authority." It is obvious that this clause covers all the expressly delegated powers, and such as may be necessary to carry
them into effect, and nothing else.  For illustration, all postal and
revenue matters, currency, the regulation of commerce. and all other
powers delegated to the Union, come within the jurisdiction of the
federal courts.  So of all controversies " between a State and citizens of another State," " between citizens of different States," and
so on through the special cases laid down.
On the other hand, the federal courts have no jurisdiction (with
the single exception embraced in the section quoted), covering all
the ordinary relations and interests of life.  They are as clearly
beyond their control in respect to everything of the kind, as of the
courts of England or France.  The Union is to them, touching
such matters, a foreign government; because the States not only
retain original and exclusive jurisdiction over them, but maintain a
complete system of laws, with ample executive and judicial powers
for their enforcement.  These laws, as we have shown, embrace
quite all the interests of society.  They are manifestly the rule,
while the powers delegated to the Union constitute the obvious exception.
It seems incredible, with the chart of the latter before us, and
the operation of all the machinery of the States by our own hands,
under the direction of engineers of our own appointment, that we
should be capable of running into controversy upon the subject, or
commit or permit the least error, in a case so clear.




92                   FREE GOVERNMENT.
It will be remembered, that in ordaining the Federal Judiciary,
it was made to cover all the delegated powers. It is the judicial
machinery of a complete government.  Its powers are coextensive
with the powers of that government.  They are limited; because
those of the United States are limited.  Whatever the President
may rightfully do, the judiciary may act upon. So of Congress.
The opposite of this is equally true.  Whatever the judiciary has
no constitutional jurisdiction over, in respect to persons and property, the President and Congress are excluded from; because the
authority of the three coordinate departments of the government
was delegated to them by the States, and the whole was organized
into and constituted one system of laws, on the express condition,
that " 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." This certainly fixes the unity of
the three departments. With different duties and obligations,
their boundaries are identical, the scope of their authority the
same.
How, then, is it within the constitutional power of any federal
agency to suspend the privilege of the writ of habeas corpus, beyond
the jurisdiction of the Eederal Judiciary?  The habeas corpus act
existed in all the States, when the Union was adopted; is it competent for Congress to travel out of the federal beat and command
its suspension by the State Courts, in respect to matters which the
State not only never delegated to the United States, but expressly
reserved to themselves or their people?
It makes nothing in favor of this pretension, that the suspension is intrusted to Congress, because that body, like the judiciary, is
limited to the delegated powers. It will not be urged, surely, that
the restrictive words of the grant, viz., " The privilege of the writ
shall not be suspended " except in certain cases, confers authority
to suspend it over things not embraced in the Federal Union.
The organic law reads, " The Congress shall have power " to do
certain enumerated things (the right of suspension not one of'
them), and it is otherwise provided, as we have seen, that nothing
else shall be done.
The legal inference to be drawn from this statement, is clearly




THE HABEAS CORPUS ACT.                    93
against the right of that body to suspend the writ, on any terms,
and absolutely conclusive against the power of suspension, beyond
the legal jurisdiction of the Federal Judiciary, or what is the same
thing, beyond the limits of the federal system.
The latter would be rightly classed as a measure proposing an
amendment to the Constitution, for it involves, in its enforcement,
not only a modification of fundamental principles, but can hardly
fail to change the very character of the government.
The union of the civil and the military powers, limited exclusively to the federal system, under the control of the President
or Congress, would be bad enough; but its extension so as to
absorb State institutions, the concretion of all the parts of our
complicated political machinery into one compact whole, is a
proposition so monstrous, disloyal, and treasonable, that to name
ought to be enough to defeat it.  The existence of civil commotions
should stimulate every true friend of civil liberty to struggle with
all energy to preserve the integrity and uphold the authority of the
Constitution and laws of the country. Instead of affording a just
ground for relaxing our fidelity to the great principles of free
government, they impose upon every honest man a necessity for
increased vigilance in their strict maintenance.
There are dangers enough to be apprehended from the workings
of the civil administration, without needlessly adding to them
those inherent in military rule. We have witnessed the revolutionary power of majorities; the tendency of one department to
encroach upon the legal functions of another; the enactment and
enforcement of laws having no other foundation than the alleged
necessities of the day; the suppression of free speech, of the press,
and the overthrow of personal rights-the exercise, indeed, of
almost absolute government, by the civil authorities.  Superadd
to these political errors the despotic enforcement of martial law,
and our fall will be complete.  The recognition, to the least
degree, of the latter, or even of military rule, is fatal to the integrity of the former. It is that loss of virtue which justifies
licentiousness and makes regeneration and atonement impossible.
Governments can no more escape the effects of this species of




94                   FREE GOVERNMENT.
license than individuals; while the difficulties of reformation are
obviously greater.
It may be stated as a never-failing principle, that the mainte.
ance of a free system  of laws is impossible, by any other than
an exclusive civil administration. There can be no compromise
between the two estates; for the simple reason that their powers
are unequal.  Military government is absolute in its very nature.
It has no deliberative features.  It is a single person; a law in
itself, with all the powers necessary to its enforcement.
But it is urged, that a government of laws, in the sense here
described, is also practically impossible; that every state must
enter into the great family of nations, and adopt for its government
international rules and regulations; and that, in order to preserve
the rights and dignities of a state, it is compelled to maintain an
army and navy.  The absence of these agencies, it is said, would
certainly invite aggression and produce evils superior to any to be
apprehended from the exercise of military power.
If these considerations have any force at all, they go to the
extent of proving that military law, in the present condition of the
world, is a sort of necessity-that we cannot maintain government
without its distinct recognition as a political element of the state.
This results, not from the condition of public sentiment here, but
from the fact that we are, as a nation, drawn into association with
others, who are not as honest as they might be.  It follows, of
course, that the Americau people, by the force of circumstances,
cannot be permitted to maintain a government of their choice.
It is true, that as a nation, we must take our place in the family of nations, and subscribe to the code of general laws adopted for
the government of all; that we must have an army and navy; that
we must be prepared to meet aggression and repel invasion. All
this is suggested by wise precaution. But it does not follow, that
it may not be done under the exclusive direction of the civil power.
Such was the design of the Union. No other principle of government has ever been recognized in this country.  It is this principle
which has distinguished ours from the Continental systems.  Its
grand agency is the judiciary. The range of its duties are coextensive with the jurisdiction of the state.




THE HABEAS CORPUS ACT.                    95
There is, undoubtedly, great virtue in the popular enthusiasm
of the day, in behalf of the Government of the Union. Its preservation, in all its integrity, is an object dear to every citizen. We
want it all, just as it was ordained. We want it as a means to an
end. Its restoration, simply because it was our government, under
which we had been most prosperous and happy, is not enough.
We want it, bcause it was a free government-an exclusive civil
government-with vast powers for doing good, when honestly
administered. We want it, because it was a standard political
system, with vastly more capacity to benefit mankind than to
assure peculiar advantages to our people.
We have placed ourselves under some obligations to all the
world.  It has been our interest to invite emigration hither,
because we possessed a great continent, a large portion of which was
unproductive. Our labor was disproportioned to our territories.
We called our country an asylum for the oppressed. We proclaimed everywhere, that our civil institutions were as free as the
air.  We opened wide the doors to citizenship; and millions entered,
and millions more, yet unborn, we supposed, would come to join us
in the great mission of free government. That mission became
sacred, far beyond the range of present life. It was for the future.
It can succeed only on the basis of the strict maintenance, at all
times, of the supremacy of the civil over the military power.
One of the most striking and fatal popular errors of the day, is
that which justifies the exercise of extra-constitutional powers, on
the alleged ground of necessity.  This is a pervading and damaging
political heresy. It is an impeachment of the whole scheme of
government, a declaration of its incapacity to answer the simplest
purposes of its creation. A nation of laws, so deficient in foresight
as'to reader their abrogation a necessity, on the first trial of their
strength and efficiency, is certainly not worth preserving. If the
Union could be maintained only by the overthrow of civil liberty, we
do not perceive the wisdom of the sacrifices we have made in its
behalf. These sacrifices go for nothing, if not offered up on the
shrine of free government. To admit the right of our political
agents, in a period of trial, to substitute their laws for ours, their
discretion, no matter with what motive, for the deliberate judgment




96                      FREE GOVERNMENT.
of the States and the people, would be a confession not only that
our institutions had entirely failed, but that we had authorized those
agents to institute government for us.  There is no way by which
this conclusion can be avoided.  And yet there are great numbers
of the people who justify the almost absolute exercise of discretionary power on the part of the President and others under himpower not confined to military operations, but of a legislative and
judicial character.  Taxes have been levied and collected.  Property has been confiscated.  Persons have been arrested, tried, and
convicted, or held in prison, at the mere will of provost marshals
and military commissions.  These things too are of daily occurrence.  They show  how  completely the civil administration has
been subordinated to the military, in every part of the Union.
It would be extraordinary virtue, if the civil power, in such a
condition of things, should retain its wonted purity and integrityif it should escape the evil influence of that general demoralization,
which never fails to follow such exhibitions of public disorder and
anarchy. The wonder is, with such fearful examples before us, in
connection with the great disasters of the war, the derangement of
business, the exhaustion of national credit,2 and the almost universal
loss of confidence in the general administration, that we are able to
exhibit so much tenacity of purpose and real devotion to the free
system of laws we have so recklessly abandoned.
NOTES.
1. "Sucn attention was paid to this charter by our generous ancestors, that
they got the confirmation of it reiterated thirty several times, and even secured it
by a rule which seems in the execution impracticable. They have established it as
a maxim, that no statute, which should be enacted in contradiction to any article of
that charter, can have force or validity. But with regard to that important article
which secures personal liberty, so far from attempting, at any time, any legal
infringment of it, they have corroborated it by six statutes, and put it out of all
doubt and controversy. If in practice it has often been violated, abuses can never
come in place of rules; nor can any rights or legal powers be derived from injury and injustice. But the subject's title to personal liberty not only is founded
on ancient, and, therefore, the more sacred laws: it is confirmed by the whole
ANALOGY of the government and constitution. A free monarchy, in which




THE HABEAS CORPUS ACT.                           97
every individual is a slave, is a glaring contradiction; and it is requisite, when
the laws assign privileges to the different orders of the state, that it likewise
secure the independence of all the members. If any difference could be made
in this particular, it were better to abandon even life or property to the arbitrary
will of the prince, nor would such immediate danger ensue from that concession,
to the laws and to the privileges of the people. To bereave of his life a man not
condemned by any legal trial, is so egregious an exercise of tyranny, that it
must at once shock the natural humanity of princes, and convey an alarm through
the whole commonwealth. To confiscate a man's fortune, besides its being a
most atrocious act of violence, exposes the monarch so much to the imputation
of avarice and rapacity, that it will seldom be attempted in any civilized
government.
"But confinement, though a less striking, is no less severe a punishment;
nor is there any spirit so erect and independent as not to be broken by the
long continuance of the silent and inglorious sufferings of a jail. The power
of imprisonment, therefore, being the most natural and potent engine of arbitrary government, it is absolutely necessary to remove it fiom a government
which is free and legal."-HuME's History of England.
" Ashbv, the king's sergeant, having asserted, in a pleading before the peers,
that the king must sometimes govern by acts of state as well as by law; this
position gave such offence that he was immediately committed to prison, and
was not released but upon his recantation and submission." —Ibid, vol. vi. p. 250.
2. "What is meant by the' constitutional currency,' about which so much is
said? What species or forms of currency does the Constitution allow, and what
does it forbid? It is plain enough that this depends on what we understand by
currency. Currency, in a large, and perhaps in ajust sense, includes not only gold
and silver and bank notes, but bills of exchange also. It may include all that
adjusts exchanges and settles balances in the operations of trade and business.
But if we understand by currency the legal money of the country, and that which
constitutes a lawful tender for debts, and is the statute measure, then undoubtedly, nothing is included but gold and silver. Most unquestionably there is no
legal tender, and there can be no legal tender, in this country, under the authority
of this Government or any other, but gold and silver, either the coinage of our
own mints, or foreign coins, at rates regulated by Congress.  This is a constitutional principle, perfectly plain, and of the very highest importance. The States
are expressly prohibited from making anything but gold and silver a tender in
payment of debts; and although no such express prohibition is applied to Congress, yet, as Congress has no power granted to it, in this respect, but to coin
money and to regulate the value of foreign coins, it clearly has no power to substitute paper, or anything else, for coin, as a tender in payment of debts and in discharge of contracts. Congress has exercised this power fully in both its branches.
It has coined money, and still coins it; it has regulated the value of foreign
5




98                      FREE GOVERNMENT.
coins, and still regulates their value. The legal tender, therefore, the constitutional standard of value, is established, and cannot be overthrown. To overthrow it would shake the whole system......   The constitutional tender is a thing to be preserved, and it ought to be preserved sacredly, under all
circumstances."-WEBsTER.




CHAPTER V.
MARTIAL LAW.
THE GUARDIANS OF CIVIL LIBERTY SHOULD UNDERSTAND WHAT IS MARTIAL LAWITS ORIGIN AND ORIGINAL POWERS IN ENGLAND-THE EXTENSION OF THE CIVIL
ESTABLISHMENT-MARTIAL LAW CONFINED AFTER THE GREAT CHARTER EXCLUSIVELY TO THE MILITARY SERVICE-ITS COMPLETE SUBORDINATION TO THE
CIVIL POWER BY THE PETITION OF RIGHT-THE ENGLISH SYSTEM OURSMARTIAL LAW IN THE UNITED STATES-REVOLUTIONS-CROMWELL-HIS MILITARY GOVERNMENT THROUGH TWELVE MAJOR-GENERALS-WHERE LAWS FAIL
IT IS A DESPOTISM-EXPOSITION OF MARTIAL LAW BY THE SUPREME COURT OF
THE UNITED STATES-ITS EXPOSITION IN ENGLAND BY LORD LOUGHBOROUGH.
A  PEOPLE who have undertaken to maintain free government,
and have.held themselves up before the world, in no very modest
speech, as the peculiar guardians of civil liberty, ought to understand exactly what is martial law, military law, and civil authority.
If we look back upon the career of the Anglo-Saxon race, these
three widely different phases of government become as distinct as
the reign of the hostile families who have been raised at times to
the throne of England.  They mark, indeed, three distinct stages
of progress, from the Norman Conquest to the time of the execution
of the Great Charter, as the first; to the enactment of the Petition
of Right, as the second; to the Bill of Rights and the final triumph
of the people in the firm establishment of the Habeas Corpus Act,
as the third.
It is a curious and instructive fact that the progress of English
liberty is exactly indicated by the progress of the civil over the
military power. Starting under the Norman conquerors with an
absolute and licentious military government, the utter overthrow
of Saxon liberty, and the complete confiscation of estates, parcelled
out to the followers of the chief, and again to sub-dependants, we
pass on to the great conflict between the barons and the king, re



100                  FREE GOVERNAMEN-T.
suiting in the conquest of Magna Charta, the reduction of the military
and the extension of the civil power, and again, to that greater
achievement of civil liberty, the Petition of Right, when, in point
of fact, the military power ceased to be an element of the Constitu.
tion of England.  All this, we repeat, is simnply a history of martial
law, as it was understood and enforced from the Norman Conquest,
up to about the time of the wresting of the Great Charter from
King John; of military law, its successor in government, as it was
enforced before the Petition of Right and the Habeas Corpus
enactment, to the final and complete triumph of the civil establishment.
Martial law, as rudely exercised by the conquerors, was absolute military government, not limited in its jurisdiction to military
persons, but extended to every citizen or subject, even to the right
of compelling service to those intrusted with command. It would
seem, from an examination of the structure of society at that period
and what was actually done, that it was the policy of the conquerors
of our honest Saxon ancestors, to confer supreme power upon the
military, as the easiest and shortest process of overthrowing, not
only their civil institutions, but the entire eradication of their social
and political habits and convictions. There were none but martial
honors to be won, and no submission, short of slavery, could be
received.
In the progress of events this early phase of martial law became modified, so as to confine its authority to military persons
in all circumstances.   Even their debts and obligations were
subject to inquiry by military commissions.  Every species of
offence committed by any person in the army must be tried, not by
a civil judicature, but by the judicature of the regiment or corps
to which he might belong. It was yet made to extend to a great
variety of cases not relating to the discipline of the army.  Plots
against the sovereign, intelligence furnished to the enemy, and
numerous other kindred matters, were all considered as cases within
the cognizance of military authority.
This was its phase for many centuries in England, and although
shorn, as was intended, by the Great Charter, through the extension of the civil establishment, of much of its offensive and dam



MARTIAL LAW.                       101
aging power, its exercise, far beyond what was necessary to preserve
discipline and order in the military service, was continued till the
time of Sir Edward Coke, when it received its final blow, from
which it has never entirely recovered.
It is a remarkable fact-at least very remarkable to the American people-that martial law, as enforced in England, after the
treaty of Runnymede, was a weak, harmless power, when compared
with the exercise of military authority in this country during the
last three years. It was absolute over all persons in the army, and
assumed that certain persons, not in the service, but acting against
the service, were thereby brought within the jurisdiction and government of martial law. There was no pretence of power to
determine crimes against the state, such as treason or other felony.
The right to sit in judgment upon the citizen, for any offence,
opinion, or speech he might commit or utter, touching the character
or conduct of the general administration, was never claimed.
Those who have carefully studied the history of governments,
where there have been two acknowledged forces in the state, the
civil and the military, need not be told that the latter is constitutionally inclined to extend its powers, during war or civil commotions. This has been especially the case in England even, where
there has ever been more distrust of military authority, and a more
profound sense of the necessity of keeping it within the strict limits
of the law, than in any other country. But with all the robust
political health of Englishmen, and their long-established devotion
to civil liberty, their career is full of instances, in which the military
power has broken over the boundaries of legal authority, and trampled down, for the day, the civil institutions of the kingdom.
It is thus seen how war may be as dangerous to a free state, on
account of its inherent tendencies to weaken or overthrow the civil
establishment, as hostile invasion by a powerful public enemy. In
the long struggle of the British people for free institutions-a
struggle, which, all the circumstances of the case considered,
evinces more earnest, patient, and profound knowledge of mankind,
than is elsewhere to be found in the history of the human familythere is not to be seen one event in time of peace, since the establishment of the existing constitution, which has seriously threatened




102                  FREE GOVERNMENT.
the legal authority of Parliament. It has been when the army
was employed by the direction and for the civil establishment, that
it has extended its powers beyond the authority conferred upon it by
the latter. But in every such event there has been, on the part of
the people, a prompt, earnest, and resolute rebuke administered to
the offending power, and a reassertion of the supreme authority of
the civil establishment.
" The army being established," says an eminent English judge,' by the authority of the legislature, it is an indispensable requisite
of that establishment, that there should be order and discipline kept
up in it, and that the persons who compose the army, for all offences in their military capacity, should be subject to trial by their officers. That has induced the absolute necessity of a mutiny act
accompanying the army."'" It is one of the objects of that act to
provide for the army, but there is a much greater cause for the
existence of a mutiny act, and that is the preservation of the peace
and safety of the kingdom; for there is nothing so dangerous to the
civil establishment of a state, as a licentious and undisciplined
army." " The object of the mutiny act, therefore, is to create a
court invested with authority to try those who are a part of the
army, in all their different descriptions of officers and soldiers; and
the object of the trial is limited to breaches of military duty. Even
by that extensive power granted by the legislature to his majesty,
to make articles of war, those articles are to be for the better governmnent of his forces, and can extend no farther."
These extracts exhibit the structure of the civil establishment
in England, and show clearly that the military is held in complete
subordination to it.  The mutiny act confers jurisdiction to the
army over offences committed by persons in a military capacity.
Without such a delegation of power, we take it, the army would
have no authority, of any kind, to punish persons in its own
service. Its power is limited by the act exclusively to such persons
-is conferred by the state to that extent only.  And then over all
is constituted a court, having superior jurisdiction of all those who
are a part of the army, in all their different descriptions of officers
and soldiers.
The important right to ordain articles of war, existing in the




MARTIAL LAW.                       103
Crown of England, and delegated by the States to Congress here,
can in no event be exercised, in either country, so as to confer
jurisdiction upon the army, beyond what is necessary to preserve and maintain discipline. The law here is precisely what it
is in England, with this exception: that there is no power in Congress, as there unquestionably is in Parliament, to extend the
authority of the army beyond the limits set upon it by the existing
British system.  That system, in this respect, is ours.  All our notions of civil liberty, and what is necessary to maintain it, we
inherited from England. We started in our career of independent
government on this distinct basis: that as long as the civil establishment can be maintained, it must be absolute over the military.
We went farther than this, and maintained that the latter should
always be held as an agent of the former, subject to its orders at
all times, and that every person in the army, who assumes to exercise original authority, is an offender against the laws, liable to
punishment through the courts, and personally liable to every citizen who may be injured thereby. This doctrine has been repeatedly affirmed in England.  Extreme punishments have been enforced against military commanders, in cases where there was some
difficulty in ascertaining whether the original offence was strictly
military in its nature.
The most celebrated, perhaps, of this class of criminal trials,
was that of Governor Wall, who, by commission of a court martial,
caused a soldier to be flogged, so that he died.  Twenty years after
the commission of the offence, Wall was tried by the civil authorities, convicted, and executed. The case turned upon a single point,
whether the alleged offence of the soldier was strictly military in
its nature. This having been determined in the negative, the
original trial by court martial could not screen the unfortunate
commander, because by that decision the military authority was
left wholly without any jurisdiction of the soldier's offence.
Lord Coke says: "If a lieutenant or any other that hath
commission of martial law in time of peace, hang or otherwise
execute any man, by color of martial law, this is murder."  What
is here meant by the words " in time of peace," is explained by
judicial decisions to be " when the courts are open "-when, in




104                 FREE GOVERNMENT.
other words, the civil establishment is in full operation. The
Count de Lancaster, having been taken in open insurrection, was, by
judgment of martial law, put to death; and this, though it was
conceded that Lancaster was taken in an armed effort to overthrow the laws, was adjudged murder. The reason assigned by the
great English lawyers in the case of the Count de Lancaster, was
that the courts were in full operation, with exclusive jurisdiction
of the offence, and that the courts martial could in no case exercise
authority over persons outside of the military service. The question of the actual guilt of the offender did not come before the
court.  Nor was it a question of jurisdiction between two courts
of civil judicature. It was the exercise of illegal authority, by a
tribunal which the commonf judgment of the nation regarded with
distrust and aversion, and which the common experience of mankind
had found necessary to keep within the strict limits of its constitutional powers. A more extreme illustration of this idea cannot be
conceived than that of the execution of Governor Wall, twenty
years after the offence had been committed.
The Federal Government has delegated power to Congress to
ordain articles of war for the government of the land and naval
forces of the United States. The purpose of this grant is too obvious to justify comment. Its language indicates the scope of the
authority delegated.  It is necessary, everybody admits, to institute separate and positive rules for the government of every military establishment. Hence, even in an elective republic like that
of the Union, where the sovereign power, by common consent,
remains in the people, whose General Government provides for the
periodical return to them of all authority, it was found necessary to
ordain for the army and navy distinct and positive regulations, of
an arbitrary nature, to the end that discipline and efficiency might
be preserved therein. Nobody will question the fact, that these
regulations are in conflict, most essentially, with the great principles which underlie a free system of laws. There is no freedom,
properly speaking, in military government. Nor can there be any.
The best that can be done, is to so construct the political system
of the state, that its civil establishment shall authorize and empower the military to do certain things within its own service



MARTIAL LAW.                       105
limited exclusively to persons legally enrolled therein-which, by
its constitution and the philosophy of the system, can be done nowhere else. But even this authority must be strictly confined to
the preservation of discipline; for on no other basis can it be justified, either by logical or analogical reasoning. Every officer, from
the commander-in-chief to the lowest subaltern, is accountable to
the civil establishment for the manner and extent of its exercise.
The military is a creature of the law, and never a judge of the law.
Its tribunals are limited by the Constitution of the United States,
and by the practice of our own and the British Government, to the
narrow sphere of its own service, and in that service, to the simple
preservation of discipline.
Another consideration of the subject, it appears to us, is entitled to great weight in connection with the federal system. The
authority of the Union is limited to certain specific grants, the
States having retained to themselves all the powers of government
not expressly delegated. The Supreme Court of the United States,
in the case of Luther vs. ZBordan, growing out of what is known as
the Dorr Rebellion, stated expressly that they would follow the decisions of the State courts in all questions which concern merely
the constitution and laws of the State.
It will be remembered that the legislature of Rhode Island declared martial law within the limits of the State; and that its
officers, under the authority thus given them, not only assumed
exclusive military jurisdiction over persons within the service, but
enforced absolute rule over all the people. The case was an extreme one, indeed; for martial law, as enforced, had not been thus
enlarged, since the presentation and enactment of the Petition of
Right, in England. It was carried out without any pretence of
aid to the civil authorities, without any apparent recognition of the
existence of a civil establishment at all, but by all the forms of
arrest without warrant, oath, or affirmation, by breaking into
houses, where no alleged offenders were found, and acting exclusively under military orders of the State.
Chief-Justice Taney, without giving any opinion upon the
legality of the proceedings, in rendering the decision of the court,
declares that the United States have no power to go behind the
h5*.




106                  FREE GOVERNMENT.
action of the constituted authorities of a sovereign member of the
Union. The case did not, in other words, come within the legal
jurisdiction of the United States. It was for the State of Rhode
Island alone to determine whether she would recognize an exclusive military government over her people, or not.
We allude to this phase of our compound system, to show that
there are more powers than one to be consulted, in cases involving
the unwarranted exercise of military authority in this country.
That of the United States is limited to the federal army, within
the scope of the laws, and to the single end of preserving discipline
therein.  On this subject we give entire, at the close of this chapter, the minority report of the judges, by Mr. Justice Woodbury,
in the case of Luther ss. Bordan, because it is a full exposition of
martial law, and its legal accuracy is not questioned by the majority decision, the latter resting the case exclusively on the ground
that they had no right to go beyond the action of the authorities
of a sovereign State. This report will be found very full in argument and authority, and will well repay, in these times, a careful
reading. In further illustration of the subject, we give entire the
exposition of Lord Loughborough, of what in England is regarded
as the relation of martial law to the civil establishment of the
kingdom.
Having traced out the origin of martial law (or military law, or
the war power, as the arbitrary enforcement of military government
has been indifferently denominated), its decline, under the gradual
enlargement of the civil establishment, to its final overthrow, at
the close of the sixteenth and commencement of the seventeenth
centuries, we have now only to refer to the ordinary practice of the
existing Administration to put the reader in possession of all that is
necessary to enable him to form an enlightened judgment upon the
current events of the day touching the maintenance of our free
system of laws. It is quite unnecessary to reiterate what we have
already stated upon this point. The exercise of martial law, to
the utmost limit of its enforcement in England, up to the year
1688; its actual control over all persons at will, both in and out
of the military service; its extension to the every-day exile or
transportation of persons beyond the limits of the authority of the




MARTIAL LAW.                       10 7
United States; its levy and collection of taxes; its arbitrary imposition of fines; its arrest and imprisonment of citizens without
any warrant of law; its suppression of free speech, the press, religious freedom, and trial by jury; its confiscation of estates; its
summary execution or murder of persons; and, finally, the open
justification of all these acts, by high officers of state, are simple
historical facts. It matters little, to a suffering people, by whose
direction or order, or in what name, or by what pretended authority,
these things have been done.  They stand as historical events, justified by those who have caused them, and the power that commanded them  is still supreme over public affairs.  We will not
undertake to argue the question whether they are legal or illegal.
To any man of common understanding, they must be received as
conclusive evidence of great depravity or great ignorance.
It is too late in the progress of free government to argue the
question whether the governor of a State is authorized, by the existence of war or rebellion, to become a despot.  We must submit
tamely to the surrender of all that makes a nation of freemen, or
we must vindicate our rights, enforce our laws, and cherish our
ancient habits, customs, and traditions. We cannot command the
respect of the world and permit such despotic institutions as martial
law to govern our people. If we prefer a despotism to civil liberty,
let us have it in its usual forms, and with its usual responsibilities.
We cannot well suffer the agonies of a struggle for absolute rule.
It would be far better, at once, to accept the new order, and aid to
clothe it with the dignities and formalities of dynastic government.
There are excuses to be urged in behalf of those who choose to
submit to the arbitrary orders of a great military commander.
Mankind are often disposed to yield a sort of homage to those whose
career marks their superiority over their fellow men.  The history
of the world is full of instances of this nature, and we all dwell
upon them with peculiar interest, and often feel our sympathies
turning to those whose brilliant deeds have raised them to dynastic
honors, even at the expense of the liberties of the people.
We are not permitted to avail ourselves, however, of this species
of justification for abandoning that noble structure of free government, under which we have lived and prospered from the very first




108                  FREE GOVERNMENT.
day of our occupation of this continent. All our great men, without a single exception, have evinced the most earnest and profound
love of our institutions.  We remember no instance, in the whole
history of the country up to the year 1861, in which a great public
man has not shown his entire devotion to our free system of laws,
and made their strict maintenance the first and last duty of every
good citizen. Precisely when we had most need of fidelity and
patriotism we have found both most wanting, among representatives
and people. The Union, menaced by widespread and thoroughly
organized rebellion against its authority, not by detached masses of
the people, but by great and powerful constituent States, acting on
the theory of the right of secession, we have undertaken to enforce
its powers over all its original territories, not by the command and
direction of the civil establishment, but solely by the command and
power of the military. It is impossible to overlook the great fact
that the employment of civil officers has ceased to be a perceptible
feature in the general administration of the Union. Those duties
which, with rare exceptions, under the British system, have not, for
more than five hundred years, been intrusted to the military, are
now habitually discharged by that arm of the public service. We
venture to say that there is not one single general officer engaged
in active service who, judged by English or federal law, has not
made himself liable to infamous punishment through the courts of
civil judicature; nor is there the least question but those courts
have legal jurisdiction of every such offence. But the actual power
is all in the hands of the military; at precisely the time, too, it
must be borne in mind, when the people are called upon to submit
to the heaviest sacrifices to uphold the authority and enforce the
laws of the Union! Just when we require the greatest integrity
as an example to offenders, and as a means of uniting and strengthening the friends of the Government, precisely then we are made
to feel that other than patriotic considerations control the councils
and direct the policy of the nation. It is surely not martial law
and military government, extended over the " loyal " people of this
country, which will best put down the " disloyal," and restore the
supremacy of the laws. We cannot comprehend the wisdom of the
policy which commands that if one State turns against the Union




MARTIAL LAW.. 109
the authorities of the latter should disfranchise all the others, as
the best means of restoring order and good neighborhood; that if
one section renounces its obligations, the others should be deprived
of the power of fulfilling theirs.
If the seceding States of the South were guilty of a great
wrong in resisting the authority of the confederation, how is it possible to make the proof of it available to us otherwise than by a faithful and honest effort, on our part, to restore that authority? If
we consent that the laws shall be set aside, from whatever motive
or on whatever pretext, are we less guilty of disobedience to their
authority and commandment than the people of the seceding States?
There is surely nothing else to maintain than our free government.
Mr. Webster says: "Whatever government is not a government of
laws is a despotism, let it be called what it may." This is a plain
proposition.  If it is not the law.that governs, what is it but a
man? Hence we find the same great statesman to lay down this
principle in connection with the maintenance of a free system of
laws:
" Nothing can be more repugnant, nothing more hostile, nothing
more directly destructive, than excessive, unlimited, and unconstitutional confidence in men; nothing worse than the doctrine that
official agents may interpret the public will in their own way, in
defiance of the Constitution and laws; or that they may set up
anything for the declaration of that will except the Constitution
and the laws themselves; or that any public officer, high or low,
should undertake to constitute himself, or to call himself, the representative of the people, except so far as the Constitution and laws
create and denominate him such representative."
This language is equally plain and conclusive.  The subject
under discussion was the exercise of executive powers by the President of the United States. Those powers are all expressly defined.
To go beyond their authority is " repugnant, hostile, and destructive to the Constitution and laws of the state; " for when " official
agents" go beyond that authority, then surely we have not a government of laws, but a despotism, " let it be called what it may."
The inquiry is returned to us, can we be ranked as vindicators of
the Constitution and laws of the Union, so long as we permit our




110                  FREE GOVERNMEINT.
official agents to set up anything else as the governing power over
the people?
Do we come to the work with clean hands to enforce the
laws, or seek the restoration of friendly intercourse and political
brotherhood between the North and the South, when throughout all
the loyal States we find the civil establishment to have been superseded or driven out by the military?
Can we be considered Union men, battling for the preservation
of the Constitution and the enforcement of the laws, until we have
stricken down that dominant military power which now governs all
the " loyal " States?
If we are contending for anything, it is for the civil establishment.  It is a great misfortune for a free state ever to be compelled
to call into being a military force of any considerable numbers, and
a great crime to permit its employment in any other way than in
aid of and obedience to the orders of civil tribunals.
A free state can never have any sufficient occasion for the enforcement of martial law, for when that species of arbitrary and
irresponsible government is really necessary, the evidence will be
conclusive that it has ceased, to all practical intents and purposes,
to be a free state. A despotism is made by the exercise of original
and supreme power by the chief of a state. It consists in the
simple fact that such power may be exercised. It would be not
less a despotism in the event of the assumption of supreme power,
in particular cases, whether the chief should enforce the former
laws of the community or not.  Cromwell governed through established English tribunals and laws long after his assumption of
dictatorial powers.  Hume says, on this subject, that " all the chief
offices in the courts of judicature were filled with men of integrity;
amidst the violence of faction the decrees of the judges were upright
and impartial; and to every man but himself, where necessity required
the contrary, the law was the great rule of conduct and behavior."
Nobody will question the completeness of the revolution which
conferred upon the Lord Protector dictatorial and despotic powers.
The process of its exercise is admirably described by the same
learned historian:
" The Protector instituted twelve major-generals, and divided




DMARTIAL LAW.                      1ll
the whole kingdom of England into so many military jurisdictions.
These men, assisted by commissioners, had power to subject whom
they pleased to decimation, to levy all the taxes [see recent proceedings of General Hugh Ewing in Kentucky, and like proceedings in Missouri and other States] imposed by the Protector and
his council, and to imprison any person who should be exposed to
their jealousy or suspicion; nor was there any appeal from them
but to the Protector himself and his council. Under color of
these powers, which were sufficiently exorbitant, the major-generals exercised authority still more arbitrary, and acted as ~f absolute
masters of the property and person of every subject.  All reasonable
men now concluded that the very mask of liberty was thrown aside,
and that the nation was forever subjected to military and despotic
government, exercised not in the legal manner of European nations,
but according to the maxims of Eastern tyranny. Not only the
supreme magistrate owed his authority to illegal force and usurpation, he had parcelled out the people into so many subdivisions of
slavery, and had delegated to his inferior ministers the same unlimited authority which he himself had so violently assumed."
Perhaps no chief of a state ever made more sanctimonious professions of friendship for the people, or more repeated promises to
preserve and maintain the civil establishment, than Cromwell. If
he exercised absolute powers, it was necessary, he claimed, in order
to put down " disloyal" persons. Without the time or disposition
to enter at large into the enormous wrongs of the Protector's government, one great fact is apparent, that he was not only the chief
of a Puritan faction, but his administration of the state was so
conducted as to practically exclude from the body politic every
subject who did not enter fully into his policy. All such persons
were regarded and treated as "disloyal" to the government.  It
is not difficult to see from this basis how readily and conclusively
the right was established to forage on all those who did not either
really or nominally sustain his " God-ordained Protectorate."  He
had made ample provision for carrying out his work of oppression
and confiscation, by parcelling out the people into military sections,
and setting over each a major-general.
The employment of the civil establishment, even through the




112                 FREE GOVERNMENT.
most pliant of agents, was too cumbrous, heavy, and uncertain to
answer his purpose.  There is always too much light in courts of
judicature to render their employment in works of oppression
either safe or effective. " An army," on the other hand, says Hume,
" is so forcible, at the same time so coarse a weapon, that any hand
which wields it may, without much dexterity, perform any operation and attain any ascendant in human affairs."
It is hardly necessary to add, that neither persons nor prop.
erty have ever been respected under the government of military
law.
Mr. Webster says: " We have no experience that teaches us
that any other rights are safe where property is not safe. Confiscations and plunder are generally, in revolutionary commotions, not
far before banishment, imprisonment, and death. It would be monstrous to give even the name of government to any association in
which the rights of property should not be completely secured...
The English Revolution of 1688 was a revolution in favor of
property, as well as of rights. It was brought about by the men
of property, for their security; and our own immortal Revolution
was undertaken not to shake or plunder property, but to protect it."
The civil establishment, under every government, represents
and enforces the legal rights of the whole people, while the military establishment, under every known system, has been found practically to represent a faction.  It is the very law of faction.  It
bears complete resemblance, in all its features and in all its actions, to a faction. Impatient of control, unruly, dictatorial, and
uncompromising, it commands where expostulation would be better, and punishes where restraint alone is needed. We cannot do
better in illustration of this idea than again to summon Mr. Webster:
" Liberty is the creature of law, essentially different from that
authorized licentiousness that trespasses on right.  It is a legal
and a refined idea, the offspring of high civilization, which the savage never understood and never can understand.  Liberty exists
in proportion to wholesome restraint; the more restraint on others,
to keep off from us, the more liberty we have..... The working




MARTIAL LAW.                       113
of our complex system, full of checks and restraints on legislative,
executive, and judicial power, is favorable to liberty and justice.
Those checks and restraints are so many safeguards thrown around
individual rights and interests. That man is free who is protected
from injury."
This power of protection exists solely in the law. Beyond the
law it is all despotism.  Revolutions involving the mere overthrow of one dynasty and the substitution of another, which takes
up the old system of laws and enforces them, are of little comparative consequence.  Beyond the derangement of business, for the
day, and the displacement of one set of officers for another, their
influence is scarcely felt. We may, without any extravagance, denominate our periodical elections as so many constitutional revolutions. They are important only as they involve greater or less
fidelity to the law, in those who come in and those who go out of
office. It is certainly a weak point in the system, that in the nature of things, the highest order of statesmanship is hardly eligible
to the highest dignities of the state. The very term, "popular
elections," indicates the necessity of giving one ear, if not both, to
policy. He who can get the most votes is a better man in the
judgment of partisans than he who is most learned, honest, truthful, and experienced in the conduct of public affairs. Policy is
far more potent than the law. So we have found it. When it
demanded the suspension of the civil establishment and the enforcement of martial law, we promptly gave up the one and sanctioned the other. Nothing was more common in the earlier stages
of the present rebellion than for public writers to enter solemn
protests against the enforcement of martial law, in the State of
New York, for instance, while they justified its exercise in the border States, whose rights rest upon precisely the same foundations
as those of the people of New York. It was policy that dictated
those protests. It was not principle, because, had they been governed by its rules, they would never have justified so gross and
clear a violation of them.
The minority report by Mr. Justice Woodbury, of the Supreme
Court of the United States, in the case of Luther against Bordan




114                  FREE GOVERNMENT.
embraces a very full and accurate review of the power of martial
law:
" This is no new distinction in judicial practice any more than
in judicial adjudications.  The pure mind of Sir Matthew Hale,
after much hesitation, at last consented to preside on the bench in
administering the laws between private parties under a government
established and recognized by other governments, and in full
pdssession de facto of the records and power of the kingdom, but
without feeling satisfied on inquiring, as a judicial question, into
its legal rights. Cromwell had'gotten possession of the government,' and expressed a willingness' to rule according to the laws
of the land'-by'red gowns rather than red coats,' as he is reported to have quaintly remarked. And this Hale thought justified
him in acting as a judge. (Hale's Hist. of the Com. Law, p. 14,
Preface.) For a like reason, though the power of Cromwell was
soon after overturned, and Charles the Second restored, the judicial
decisions under the former remained unmolested on this account,
and the judiciary went on as before, still looking only to the de facto
government for the time being. Grotius virtually holds the like
doctrine. (B. I., ch. 4, sec. 20, and B. II., ch. 13, sec. 11.) Such
was the case, likewise, over most of this country, after the Declaration of Independence, till the acknowledgment of it by England
in 1783. (3 Story's Com. on Const., 9~ 214, 215.) And such is
believed to have been the course in France under all her dynasties
and regimes, during the last half century.
"These conclusions are strengthened by the circumstance, that
the Supreme Court of Rhode Island, organized since, under the
second new constitution, has adopted this principle. In numerous
instances, this court has considered itself bound to follow the decision of the State tribunals on their own constitutions and laws.
(See cases in Smith v. Babcock, 2 Woodb. & Min.; 5 Howard,
139; Elmnendorf v. Taylor, 10 Wheat. 159; Bank of U. States v.
Daniel et al., 12 Peters, 32.)  This, of course, relates to their
validity when not overruling any defence set up under the authority
of the United States. None such was set up in the trial of Dorr,
and yet, after full hearing, the Supreme Court o# Rhode Island
decided that the old charter and its legislature were the political




MARTIAL LAW.                       115
powers which they were bound to respect, and the only ones legally
in force at the time of this transaction; and accordingly convicted
and punished the governor chosen under the new constitution for
treason, as being technically committed, however pure may have
been his political designs or private character. (Report of Dorr's
Trial, 1844, pp. 130, 131.)  The reasons for this uniform compliance by us with State decisions made before ours on their own laws
and constitutions, and not appealed from, are given by Chief-Justice
Marshall with much clearness. It is only necessary to refer to his
language in Elmendorf v. Taylor, 10 Wheat. 159.  Starting, then,
as we are forced to here, with several political questions arising on
this record, and those settled by political tribunals in the State and
General Government, and whose decisions on them we possess no
constitutional authority to revise, all which, apparently, is left for
us to decide is the other point-whether the statute establishing
martial law  over the whole State, and under which the acts
done by the defendants are sought to be justified, can be deemed
constitutional.
"To decide a point like the last is clearly within judicial cognizance, it being a matter of private personal authority and right,
set up by the defendants under constitutions and laws, and not of
political power, to act in relation to the making of the former.
"' Firstly, then, in order to judge properly whether this act of
Assembly was constitutional, let us see what was the kind and
character of the law the Assembly intended in this instance to
establish, and under which the respondents profess to have acted.
" The Assembly says:' The State of Rhode Island and Providence Plantations is hereby placed under martial law, and the same
is hereby declared to be in full force until otherwise ordered by the
General Assembly, or suspended by proclamation of his excellency
the Governor of the State.'  Now, the words' martial law,' as
here used, cannot be construed in any other than their legal sense,
long known and recognized in legal precedents as well as political
history.  (See it in 1 Hallam's Const. Hist., ch. 5, p. 258; 1 MacArthur on Courts Martial, 33.)  The legislature evidently meant
to be understood in that sense by using words of such well-settled
construction, without any limit or qualification, and covering the




116                  FREE GOVERNMENT.
whole State with its influence, under a supposed exingency and
justification for such an unusual course. I do not understand this
to be directly combated in the opinion just delivered by the ChiefJustice. That they could mean no other than the ancient martial
law, often used before the Petition of Right, and sometimes since,
is further manifest from the fact, that they not only declared'martial' law to exist over the State, but put their militia into
the field to help, by means of them and such a law, to suppress the
action of those denominated'insurgents,' and this without any
subordination to the civil power, or any efforts in conjunction and
in cooperation with it. The defendants do not aver the existence
of any civil precept which they were aiding civil officers to execute,
but set up merely military orders under martial law. Notwithstanding this, however, some attempts have been made at another
construction of this act, somewhat less offensive, by considering it a
mere equivalent to the suspension of the habeas corpus, and another
still to regard it as referring only to the military code used in the
armies of the United States and England. But when the legislature
enacted such a system' as martial law,' what right have we to say
that they intended to establish something else and something
entirely different? A suspension, for instance, of the writ of habeas
corpus-a thing not only unnamed by them, but wholly unlike and
far short in every view of what they both said and did? Because
they not only said, eo nomine, that they established' martial law,'
but they put in operation its principles; principles not relating
merely to imprisonment, like the suspension of the habeas corpus,
but forms of arrest without warrant, breaking into houses where
no offenders were found, and acting exclusively under military
orders rather than civil precepts.
" Had the legislature meant merely to suspend the writ of habeas
corpus, they, of course, would have said that, and nothing more.
A brief examination will show, also, that they did not thus intend
to put in force merely some modern military code, such as the
Articles of War made by Congress, or those under the Mutiny Act
in England. They do not mention either, and what is conclusive
on this, neither would cover or protect thern, in applying the provisions of those laws to a person situated like the plaintiff. For




MARTIAL LAW.                      117
nothing is better settled than that military law applies only to
military persons; but'martial law' is made here to apply to all.
(Hough on Courts Martial, 384, note; 27 State Trials, 625, in
Theobald Wolfe Tone's case.)
"The present laws for the government of the military in England, also, do not exist in the vague and general form of martial
law; but are explicitly restricted to the military, and are allowed
as to them only to prevent desertion and mutiny, and to preserve
good discipline. (1 Bl. Com. 412; 1 MacArthur on Courts
Martial, p. 20.)  So, in this country, legislation as to the military
is usually confined to the General Government, where the great
powers of war and peace reside.'And hence, under those powers,
Congress, by the act of 1806 (2 Stat. at Large, 359), has created
the Articles of War,'by which the armies of the United States
shall be governed,' and the militia when in actual service, and
only they. To show this is not the law by which other than those
armies shall be governed, it has been found necessary, in order to
include merely the drivers or artificers'in the service,' and the
militia after mustered into it, to have special statutory sections,
(See articles 96 and 97.) Till mustered together, even the militia
are not subject to martial law. (5 Wheat. 20; 3 Stor. Com. Const.
~ 120.) And whenever an attempt is made to embrace others in its
operation, not belonging to the military or militia, nor having ever
agreed to the rules of the service, well may they say, we have not
entered into such bonds-in h1ec vincula, non veni.  (2 Hen. B1.
99; 1 Bl. Corn. 408, 414; 1 D. & E. 493, 550, 784; 27 State
Trials, 625.) Well may they exclaim, as in Magna Charta, that'no freeman shall be taken or imprisoned but by the lawful judgment of his equals, or by the law of the land.' There is no pretence that this plaintiff, the person attempted to be arrestod by the
violence exercised here, was a soldier or militiaman then mustered
into the service of the United States, or of Rhode Island, or subject by its laws to be so employed, or on that account sought to be
seized. He could not, therefore, in this view of the case, be arrested
under this limited and different kind of military law, nor houses be
broken into for that purpose and by that authority.
"So it is a settled principle even in England, that,'under the




118                   FREE GOVERNMENT.
British Constitution, the military law does in no respect either
supersede or interfere with the civil law of the realm,' and that'the former is in general subordinate to the latter' (Tytler on
Military Law, 365); while' martial law' overrides them all. The
Articles of War, likewise, are not only authorized by permanent
rather than temporary legislation, but they are prepared by or
under it with punishments and rules before promulgated, and
known and assented to by those few who are subject to them, as
operating under established legal principles and the customary
military law of modern times. (1 East, 306, 313; Pain v. Willard, 12 Wheat. 539, and also 19; I MacArthur, Courts Martial, 13
and 215.) They are also definite in the extent of authority under
them as to subject-matter as well as persons, as they regulate and
restrain within more safe limits the jurisdiction to be used, and
recognize and respect the civil rights of those not subject to it, and
even of those who are in all other matters than what are military
and placed under military cognizance. (2 Stephen on Laws of
Eng. 602; 9 Bac. Abr., Soldier, F; Tytler on Military Law,
119.) And as a further proof how rigidly the civil power requires
the military to confine even the modified code martial to the military, and to what are strictly military matters, it cannot, without
liability to a private suit in the judicial tribunals, be exercised on
a soldier himself for a cause not military, or over which the officer
had no right to order him; as, for example, to attend school instruction, or pay an assessment towards it out of his wages.  (4
Taunt. 67; 4 Maule &  Selw. 400; 2 Hen. Bl. 103, 537; 3
Jranch, 337; 7 Johns. 96.)
"The prosecution of Governor Wall in England, for causing,
when he was in military command, a soldier to be seized and flogged so that he died, for an imputed offence not clearly military and
by a pretended court martial without a full trial, and executing
Wall for the offence after a lapse of twenty years, illustrate how
jealously the exercise of any martial power is watched in England,
though in the army itself and on its own members. (See Annual
Register for 1802, p. 569; 28 State Trials, p. 52, Howell's ed.)
" How  different in its essence and forms, as well as subjects,
from the Articles of War was the " martial law " established here




MARTIAL LAW.                       119
over the whole people of Rhode Island, may be seen by adverting
to its character for a moment, as described in judicial as well as
political history. It exposed the whole population, not only to be
seized without warrant or oath, and their houses broken open and
rifled, and this where the municipal law and its officers and courts
remained undisturbed and able to punish all offences, but to send
prisoners, thus summarily arrested in a civil strife, to all the harsh
pains and penalties of court martial or extraordinary commissions,
and for all kinds of supposed offences. By it, every citizen, instead
of reposing under the shield of known and fixed laws as to his
liberty, property, and life, exists with a rope round his neck, subject
to be hung up by a military despot at the next lamp-post under the
sentence of some drumhead court martial. (See Simmons's Pract.
of Courts Martial, 40.)  See such a trial in Hough on Courts Martial, 383, where the victim on the spot was' blown away by a gun,'
neither'time, place, or persons considered.' As an illustration
how the passage of such a law may be abused, Queen Mary put it
in force in 1558, by proclamation merely, and declared,'that
whosoever had in his possession any heretical, treasonable, or seditious books, and did not presently burn them, without reading them
or showing them to any other person, should be esteemed a, rebel,
and without further delay be executed by the martial law.' (Tytler
on Military Law, p. 50, ch. 1, sec. 1.)
"For convincing reasons like these, in every country which
makes any claim to political or civil liberty,'martial law,' as here
attempted and as once practised in England against her own people,
has been expressly forbidden for near two centuries, as well
as by the principles of every other free constitutional government.
(1  Hallam's Const. Hist. 420.)  And it would be not a little
extraordinary if the spirit of our institutions, both State and
national, was not much stronger than in England against the unlimited exercise of martial law over a whole people, whether attempted by any chief magistrate or even by a legislature.
" It is true, and fortunate it is that it is true, the consequent actual
evil in this instance from this declaration of martial law was smaller
than might have been naturally anticipated. But we must be
thankful for this, not to the harmless character of the law itself,




120                  FREE GOVERNMENT.
but rather to an inability to arrest many, or from the small opposition in arms, and its short continuance, or from the deep jealousy
and rooted dislike generally in this country to any approach to the
reign of a mere military despotism. Unfortunately, the legislature
had heard of this measure in history, and even at our Revolution,
as used by some of the British generals against those considered
rebels; and, in the confusion and hurry of the crisis, seem to have
rushed into it suddenly, and, I fear, without a due regard to private
rights, or their own constitutional powers, or the supervisory authority of the General Government over wars and rebellions.
" Having ascertained the kind and character of the martial law
established by this Act of Assembly in Rhode Island, we ask next,
how, under the general principles of American jurisprudence in
modern times, such a law can properly exist, or be judicially
upheld? A brief retrospect of the gradual, but decisive repudiation
of it in England will exhibit many of the reasons why such a law
cannot be rightfully tolerated anywhere in this country.
" One object of parliamentary inquiry, as early as 1620, was to
check the abuse of martial law by the king which had prevailed
before. (Tytler on Military Law, 502.) The Petition of Right, in
the first year of Charles the First, reprobated all such arbitrary
proceedings in the just terms and in the terse language of that
great patriot as well as judge, Sir Edward Coke, and prayed they
might be stopped and never repeated. To this the king wisely
replied,' Soit droit fait comme est desire-Let right be done as
desired.' (Petition of Right, in Statutes at Large, 1 Charles I.)
Putting it in force by the king alone was not only restrained by
the Petition of Right early in the seventeenth century, but virtually denied as lawful by the Declaration of Rights in 1688. (Tytler
on Military Law, 307.) Hallam, therefore, in his Constitutional
History, p. 420, declares its use by'the commissions to try
military offenders by martial law a procedure necessary within
certain limits to the discipline of an army, but unwarranted by the
constitution  of this country.' Indeed, a distinguished English
judge has since said, that' martial law,' as of old, now' does not
exist in England at all,''was contrary to the constitution, and
has been for a century totally exploded.' (Grant v. Gould, 2 Hen.




MARTIAL LAW.                       121
B1. 69; 1 Hale's P. C. 346; Hale's Com. Law, ch. 2, p. 36; 1 MacArthur, 55.) This is broad enough, and is correct as to the community generally in both war and peace. No question can exist as
to the correctness of this doctrine in time of peace.  The Mutiny
Act itself, for the government of the army, in 36 Geo. III., ch. 24,
sec. 1, begins by reciting,' Whereas, no man can be forejudged of
life and limb, or subjected in time of peace to any punishment
within the realm by martial law.' (Simmons's Pract. of Courts
Martial, 38.)
" Lord Coke says, in 3 Inst. 52:'If a lieutenant, or any other
that hath commission of martial authority in time of peace, hang or
otherwise execute any man by color of martial law, this is murder.''Tholn. Count de Lancaster, being taken in open insurrection, was
by judgment of martial law put to death,' and this, though during
an insurrection, was adjudged to be murder, because done in time
of peace, and while the courts of law were open. (1 Hallam's Const.
Hist. 260.)  The very first Mutiny Act, therefore, under William
the Third, was cautious to exonerate all subjects except the military
from any punishment by martial law. (Tytler on Military Law, 19,
note.) In this manner it has become gradually established in England, that in peace the occurrence of civil strife does not justify
individuals or the military or the king in using martial law over
the people.
" It appears, also, that nobody has dared to exercise it, in war or
peace, on the community at large, in England, for the last century
and a half, unless specially enacted by Parliament, in some great
exigency and under various restrictions, and then under the theory,
not that it is consistent with bills of rights and constitutions, but
that Parliament is omnipotent, and for sufficient cause may override
and trample on them all, temporarily.
" After the civil authorities have become prostrated in particular
places, and the din of arms has reached the most advanced stages
of intestine commotions, a Parliament which alone furnishes the
means of war —a Parliament unlimited in its powers-has, in extremis, on two or three occasions, ventured on martial law beyond the
military; but it has usually confined it to the particular places
thus situated, limited it to the continuance of such resistance, and
6




122                  FREE GOVERNMENT.
embraced in its scope only those actually in arms. Thus the' Insurrection Act' of November, 1796, for Ireland, passed by the
Parliament of England, extended only to let magistrates put people'out of the king's peace,' and subject to military arrest, under
certain circumstances. Even then, though authorized by Parliament,
like the General Government here, and not a State, it is through
the means of the civil magistrate, and a clause of indemnity goes
with it against prosecutions in the' king's ordinary courts of law.'
(Annual Register, p. 173, for A. D. 1798; 1 MacArthur, Courts
Martial, 34.)  See also the cases of the invasions by the Pretender
in 1715 and 1745, and of the Irish rebellion in 1798. (Tytler on
Military Law, 48, 49, 369, 370, App. No. 6, p. 402, the act passed by
the Irish Parl.; Simmons's'Practice of Courts Martial, App. 633.)'
In the case of Grant vs. Sir Charles Gould, 1792, Lord Loughborough rendered the following opinion touching the status of
martial law in England:
"The suggestion begins, by stating the laws and statutes of the
realm, respecting the protection of personal liberty.  It goes on to
state, that no person ought to) be tried by a court martial, for any
offence not cognizable by martial law, and so on. In the preliminary observations upon the case, my brother Marshall went at length
into the history of those abuses of martial law which prevailed in
ancient times.  This leads me to an observation, that martial law,
such as it is described by Hale, and such also as it is marked by
Mr. Justice Blackstone, does not exist in England at all.  Where
martial law is established and prevails in any country, it is of a
totally different nature from that which is inaccurately called martial law, merely because the decision is by a court martial, but
which bears no affinity to that which was formerly attempted to be
exercised in this kingdom; which was contrary to the constitution,
and which has been for a century totally exploded. Where martial law prevails, the authority under which it is exercised claims a
jurisdiction over all military persons, in all circumstances.  Even
their debts are subject to inquiry by a military authority; every
species of offence, committed by any person who appertains to the
army, is tried, not by a civil judicature, but by the judicature of
the regiment or corps to which he belongs.  It extends also to a




MARTIAL LAW.                       123
great variety of cases not relating to the discipline of the army, in
those states which subsist by military power. Plots against the
sovereign, intelligence to the enemy, and the like, are all considered as cases within the cognizance of military authority.
" In the reign of King William there was a conspiracy against his
person in Holland, and the persons guilty of that conspiracy were
tried by a council of officers.  There was also a conspiracy against
him in England, but the conspirators were tried by the common law.
And within a very recent period, the incendiaries who attempted to
set fire to the docks at Portsmouth were tried by the common law.
In this country, all the delinquencies of soldiers are not triable, as in
most countries in Europe, by martial law; but where they are ordinary offences against the civil peace, they are tried by the common law courts.  Therefore it is totally inaccurate to state martial
law as having any place whatever within the realm of Great Britain.
But there is, by the providence and wisdom of the legislature, an
army established in this country, of which it is necessary to keep up
the establishment. The army being established by the authority
of the legislature, it is an indispensable requisite of that establishment, that there should be order and discipline kept up in it, and
that the persons who compose the army, for all offences in their
military capacity, should be subject to a trial by their officers. That
has induced the absolute necessity of a mutiny act, accompanying
the army. It has happened, indeed, at different periods of the government, that there has been a strong opposition to the establishment
of the army. But the army being established and voted, that led
to the establishment of a mutiny act.  A remarkable circumstance
happened in the reign of George the First, when there was a division
of parties on the vote of the army. The vote passed, and the army
was established, but from some political incidents which had happened, the party who opposed the establishment of the army would
have thrown out the mutiny bill.  Sir Robert Walpole was at the
head of that opposition, and when some of their most sanguine
friends proposed it to them, they said, as there was an army established, and even if the army was to be disbanded, there must be a
mutiny act, for the safety of the country. It is one object of that
act to provide for the army; but there is a much greater cause for




124                  FREE GOVERNMENT.
the existence of a mutiny act, and that is the preservation of the
peace and safety of the kingdom; for there is nothing so dangerous
to the civil establishment of a state as a licentious and undisciplined
army; and every country which has a standing army in it is
guarded and protected by a mutiny act. An undisciplined soldiery
are apt to be too many for the civil power; but under the command
of officers, those officers are answerable to the civil power that they
are kept in good order and discipline. All history and all experience, particularly the experience of the present moment, give the
strongest testimony to this.  The object of the mutiny act, therefore, is to create a court invested with authority to try those who
are a part of the army, in all their different descriptions of officers
and soldiers; and the object of the trial is limited to breaches of
military duty. Even by that extensive power granted by the
legislature to his majesty, to make articles of war, those articles
are to be for the better government of his forces, and can extend
no farther than they are thought necessary to the regularity and
due discipline of the army. Breaches of military duty are in
many instances strictly defined; they are so in all cases where
capital punishment is to be inflicted; and in other instances where
*the degree of offence may vary, it may be necessary to give a
discretion with regard to the punishment, and in some cases it is
impossible more strictly to mark the crime than to call it a neglect
of discipline.
" This court being established in this country by positive law,
the proceedings of it, and the relation in which it will stand to the
courts of Westminster Hall, must depend upon the same rules with
all other courts which are instituted and have particular powers
given them, and whose acts, therefore, may become the subject of
application to the courts of Westminster Hall for a prohibition.
Naval courts martial, military courts martial, courts of admiralty,
courts of prize, are all liable to the controlling authority which the
courts of Westminster Hall have from time to time exercised, for the
purpose of preventing them from exceeding the jurisdiction given
to them; the general ground of prohibition being an excess of jurisdiction, when they assume a power to act in matters not within
their cognizance."




PART SECOND.








CHAPTER I.
THE ANGLO-SAXON SYSTEM OF LOCAL SOVEREIGNTIES.
OBJECT OF THE PRESENT WORK-FREEDOM AMONG THE ANGLO-SAXONS-EORLS AND
CEORLS-ORIGIN OF THE DISTINCTION-LOCAL CHARACTER OF THE SAXON
SYSTEM-THE TYTHING AND FRANK-PLEDGE-THE HUNDRED-THE BURGHTHE SHIRE-ILLUSTRATION OF COUNTY COURT PROCEEDINGS-ORIGIN OF LEGAL
CUSTOMS IN THE FOLK-COURTS-CONSTITUTION AND POWERS OF THE WITTENAGEMOTE-CONSTITUTION OF THE SAXON EMPIRE-DECADENCE OF THE SAXON
SYSTEM.
THE liberties of England-and of these United States-as they
exist to-day, were not created by the generosity of princes, nor
devised by legislative wisdom. They were the unquestioned birthright of our Anglo-Saxon forefathers a thousand years ago, and
only wrested after centuries of contest from the royal power which
had unlawfully suppressed them. Freedom is the natural condition
of mankind: but when, in the formation of political organizations,
the freedom of the people is surrendered to the ruling power, it
cannot be regained but by a long, persistent, and determined struggle, waged through revolution after revolution, till at length the
people wins back only that which it ought never to have lost. In
such a sequence of events, nothing can be certainly predicted but
the bloody penalty of infidelity to freedom. It is never certain that
the ancient liberty will be recovered. Of the modern nations sprung
from the German tribes which took possession of the Roman territories at the great upbreaking of the Empire, and established in
their new homes the free customs and immunities which were their
immemorial inheritance, not one, save England, has been able to
this day to cast off utterly the yoke of bondage set upon their necks
by medieval feudalism; and even England had to struggle for six




128    ANGLO-SAXON SYSTEM OF LOCAL SOVEREIGNTIES.
denturies before she was secure in the enjoyment of the rights which
no man dared to question in the days of Saxon Edward the Confessor.
We believe the time has come when these United States must
choose deliberately and finally between the principles of Saxon freedom and of feudal servitude. If they shall choose the former, unborn
generations will rise up to call them blessed: if the latter, no one
can foretell the heritage of blood and strife they will bequeath to
their posterity.
Our purpose is to show the animating spirit of the Saxon system; the antagonistic principle of feudalism which superseded it;
the dire necessities which forced the Norman barons to repudiate
their feudal obligations and fall back on ancient statutes of the
Saxon kingdom, battling with the Saxon commons for their ancient Saxon rights; and the successive steps by which the longlost liberties of England were won back from the strong grasp of
kingly usurpation.
As the subject of the present chapter is the Anglo-Saxon system, it is important to observe that every Saxon man was free;
and free not merely in the sense of being his own master, but because he was " a living unit in the state." He held lands in his
own right. He was entitled to attend the courts, and join in their
deliberations.  He could bear arms, and had the legal power to use
them in maintaining his just rights, even to the extent of making
violent reprisals for the injuries inflicted on him by his enemies.
Indeed, so far was this right of the freeman carried, that the Saxon, like the ancient Hebrew, was permitted voluntarily to abdicate
his fireedom and become the vassal of another under whose control
he chose to place himself.
It is true the freedom of the Saxons did not necessarily include
the notion of equality. Far otherwise. They were divided into
two great classes, eorls and ceorls, or gentlemen and commons; a
distinction which the learned Lingard says was merely personal,
conveying neither property nor power. The eorls were said to be
ethel-born, that is, of noble birth; which, probably, among a people
who acknowledged no merit superior, or even equal, to that of martial prowess, was applied only to those whose fathers had never




ANGLO-SAXON SYSTEM OF LOCAL SOVEREIGNTIES.    129
exercised the occupations of husbandry or the mechanic arts.
" Yet the eorl possessed important advantages. In fact, he was also
designated as twelf-haend-man, while to the ceorl was given the
appellation of twi-haend-man, which would place their comparative worth in the estimation of the Saxon law in the ratio of twelve
to two, or six to one; " and in certain judicial and other proceedings an actual advantage attached to the eorls in this ratio. The
ceorl, however, was by no means a degraded person. He might
raise himself by industry or enterprise to be an eorl. A merchant
who went thrice across the sea in his own craft became an eorl.
Or, if a ceorl acquired five hides of land —about six hundred
acres —having thereupon a church and mansion for his family, he
too, became an eorl.  Thus the distinction appears to have been
chiefly honorary, though in certain matters evident advantages attached to the superior rank.
The sense of personal freedom and responsibility was strangely
mingled in the Saxon mind with reverence for rank, which to
the Saxon represented martial glory.  Moreover, the notion of
the family relation was extended to the tribe, of which the chief,
whose office was elective, was the head and representative.  Tacitus informs us that in his time the German chieftains were surrounded by bands of adherents or companions, who voluntarily
attached themselves to their respective leaders.  They were the
chieftain's ornament and pride in peace; in war, the chief source of
his power. The only tie which bound them to his person was that
of honor and affection.  He considered it his duty to reward their
services; but his rewards were not regarded in the light of pay.
The notion of obligatory or purchased service was repudiated by
the chief no less than by his free companions. In such estimation
was this institution held, that every freeman was, for a long time, required to be connected with some chieftain, who was called his
hlaford, i. e. lord, although his choice was wholly unrestrained as
to the particular chieftain under whom  he placed himself.  The
freeman did not become a vassal, and still less a slave, to his superior. Their connection was a simple social contract, freely entered into both by lord and man, and might be terminated at the
choice of either. While it lasted, they were bound to mutual de



130    ANGLO-SAXON SYSTEM OF LOCAL SOVEREIGNTIES.
fence against all wrongs and enemies whatever. The lord was the
man's legal surety and the champion of his man's right, and to fail
in this regard was held to be dishonor. On the other hand, the
man was present and took part in the lord's courts and councils,
and attended him in war. Desertion of the standard of his lord in
open fight was treason; but he was at liberty at any other time to
leave his lord and choose another.
Evidently this relationship of lord and freeman must have exercised a potent influence in the development of Anglo-Saxon institutions. The settlements of the Germanic tribes in Britain were
effected at successive times, in different localities, and under different leaders, who established on the soil of Britain many tribes
which, though of kindred blood and speech, were not identical.
Eight independent kingdoms therefore soon appeared, in all of
which the public polity was of the same free type, although their
mutual independence necessarily prevented uniformity. Of the various steps whereby these different kingdoms were at length united
under one crown, it is not our purpose now to speak at length.
Suffice it, for the present, to observe that the union of the crowns
did not at all imply a union of the kingdoms. These, as we shall
see, remained distinct, and unless when voluntary coalitions were
effected, they retained their own laws, with their independent
witena-gemotes or parliaments.
In sketching such a simple system as the Anglo-Saxon, the most
ready way of giving a complete view is to begin with the Individual. This we have already done, and shown sufficiently that every
Saxon man was in the best and highest sense a freeman. Slaves,
among the Anglo-Saxons, were their subjugated enemies. We are
now to show the various institutions and divisions of the people
which made up the sum of the Anglo-Saxon government; and we
shall find throughout the whole, that its one animating principle was
that of LOCAL SOVEREIGNTY. Consolidated power was totally unknown among them. From the least matters to the greatest, every
right of jurisdiction vested in the local power alone, to the exclusion of all others whatsoever. In a word, the local powe:s were
sovereign and independent in all local matters.'
The first and elemental division of the Anglo-Saxon people was




ANGLO-SAXON SYSTEM OF LOCAL SOVEREIGNTIES.   131
the TYTIING, with its officer and representative, the tything-man.
It was founded on no territorial basis, but was simply the embodiment of every ten households or families of such freemen as were
not in the " mund," or under the protection of a superior lord. It
was a police division, in which each man of the ten became responsible in some degree for all the rest, under a kind of suretyship,
called Frank-Pledge. If one of them committed a crime, it was the
duty of the rest to produce him in justice, that the wrong-doer might
make reparation by his own property, or by personal punishment.
In case of his escape, the tything was allowed to purge itself of all
participation in the crime and the escape; but, failing such an exculpation, if the malefactor's property proved insufficient for the
payment of the penalty, the tything was compelled to make it
good. The influence of such a local system of responsibility in
rude times can be easily conceived.  It was the interest of every
man that each should keep the peace; and in this simplest distribution of the Anglo-Saxons, we perceive at once the presence of
that principle of local unity and local supervision which becomes
but clearer as we carry our investigations farther.
Next in order to the tything was the HUNDRED, which was
represented by its officer, the hundred-man. Concerning its organization, antiquarians have had much dispute-some holding it to be
a territorial division of the country into tracts, containing each one
hundred hides of land; while others with much plausibility maintain that hundreds, like the tythings, were numerically organized,
containing each one hundred families. The truth is, both opinions
are most probably correct. In the southern kingdoms of the Octarchy, the hundred could not have been organized on the same
principle as in the northern. Sussex, for example, was divided
into sixty-five hundreds, and Dorset into forty-three; while Yorkshire had but twenty-six, and Lancashire not more than six. So
wide a difference as this must have arisen from a difference of plan
in the construction of the hundreds; and as Alison observes, "the
divisions of the north, properly called wapentakes, were planted
upon a different system [from the hundreds of the south], and obtained the denomination of hundreds incorrectly, after the union of
all England under a single sovereign." However this may be, the




132    ANGLO-SAXON SYSTEM OF LOCAL SOVEREIGNTIES.
union of the Anglo-Saxon crowns produced no change in the local
law, either in the northern or the southern kingdoms; and the wapentakes of the north, like the hundreds of the south, continued in
the full enjoyment of their local customs. Every hundred held a
hundred court once in each month, in which it took cognizance of
causes both civil and criminal. The freemen of the hundred were
at once the witnesses, the judges, and the jury in these courts.
The hundred-man, with an ecclesiastic, aided them with his advice on points of law or right, but the decision rested absolutely
with the freemen of the hundred. So closely did our Saxon fathers
guard the sovereignty of their local institutions, that it is questionable whether an appeal was suffered to be made from the decision of the hundred court, unless where litigants were residents
of different hundreds. Yet it seems but reasonable to suppose that
such appeals were sometimes made to the superior county courts.
The BURGH Iwas a hundred, or, perhaps often, a union of hundreds, surrounded by a moat, wall, or stockade. Its business was
transacted in its burgh courts, which had jurisdiction over causes
arising within their limits.
But the most important distribution of the country was into
shires, or counties, which were strictly territorial divisions, and included within definite boundaries the freemen who composed the
tythings and hundreds, lords with the men belonging to their
" munds," burghs with their burghers, and religious houses with
their tenants and dependants. In the shire courts, whose presiding officer was called an Ealdor-man, the most important judicial business of the county was transacted at half-yearly sessions.
Of their importance, Hallam  observes as follows: "It has been
justly remarked by Hume, that among a people who lived in so
simple a manner as the Anglo-Saxons, the judicial power is always of more importance than the legislative. The liberties of
the Anglo-Saxon thanes (freemen) were chiefly secured-next to
their swords and free spirits —by the inestimable right of deciding
civil and criminal suits in their own county courts: an institution
which, having survived the Conquest, contributed in no small degree to fix the liberties of England upon a broad and popular basis." 2
The procedure of the county court was summary and simple.  It




ANGLO-SAXON SYSTEM OF LOCAL SOVEREIGNTIES.   133
was composed of all the freemen of the county who assembled at
the regular time, or on a special summons if the court were held
at any other time. The ealdorman, in later times, assisted by a
bishop or other ecclesiastic, presided, and, no doubt, instructed
these unlearned judges, but he had no power to force or overrule
their verdict. The freemen of the shire decided the whole controversy. They judged the fact and applied the law. The only duty
of the ealdorman was to execute their judgments. The following
account from an old chronicle of the proceedings in an Anglo-Saxon
shire gemote or county court, will illustrate the summary and informal judgments of the times: " To this gemote came Edwin and
spake against his mother concerning some lands.  The bishop
asked who would answer for her. Thurcil the White said he would
answer for her if he knew the complaint, but that he was ignorant
of it. Then three thanes of the gemote were showed where she
lived, and rode to her and asked what dispute she had about the
land for which her son was impleading her. She said that she had no
land that belonged to him, and was angry with her son. So she
called Lleofleda her kinswoman, the wife of Thurcil the White, and
before the thanes spake thus: Here sits Lleofleda my kinswoman.
I give thee both my lands, my gold, and my clothes, and all that I
have after my life. Then said she to the thanes, Do thane-like, and
tell well to the gemote before all good men what I have said, and
tell them to whom I have given my lands and my goods, but to my
son nothing; and pray them to be witnesses of this. And they did
so, and rode to the gemote, and told all the good men there what
she had said to them. Then stood up Thurcil the White in that
gemote, and prayed all the thanes to give to his wife all the lands
which her relation had given her. And they did so, and Thurcil
the White rode to St. Ethelbert's church by all the folk's leave
and witness, and left it to be set down in our Christ's book." The
decision of the shire gemote or county court was irreversible, unless by the great council of the kingdom. Appeal from it was not
permitted even to the king. Persons, such as slaves, who were not
law worthy-that is, capable of bringing suits at law-or who could
not obtain a hearing in their county court, might lay their cause
before the king; but even Edgar, the most powerful of the Saxon




134    ANGLO-SAXON SYSTEM OF LOCAL SOVEREIGNTIES.
monarchs, found it necessary to proclaim by the following ordinance
that he would hear none but the causes that legitimately might be
brought before the throne: "Now this is the secular ordinance
which I will that it be held.  This then is just what I will; that
every man be worthy of folk-right, as well poor as rich; and that
righteous dooms be judged to him; and let there be that remission
in the bot as may be becoming before God and tolerable before
the world. And let no man apply to the king in any suit unless he
at home may not be law worthy or cannot obtain law. If the law
itself be too heavy, let him seek a mitigation of it from the king;
and for any bot-worthy crime let no man forfeit more than his
wer."7 Bot, in the glossary, signifies amends, atonement, compensation, and emancipation.  A man's wer is the estimated value of his
life —every man's life, among the Saxons, being estimated at a certain money value, according to his rank.
Such was the judicial system of our Anglo-Saxon forefathers,
and the character of local sovereignty which attached to the assemblies of the people in their various organizations. Evidently courts
like these must often have been forced, from ignorance of law, to
make the law in a particular case: and it is also to be kept in mind that
they were courts of voluntary jurisdiction.  " All transactions by
which property might be acquired or lost, the purchase and sale of
land, and the payment of money, were effected in the assemblies of
the hundred. Here charters and deeds were produced and read, or,
if they had been lost, they were established and confirmed." The shire
court possessed the same jurisdiction as that of the hundred, and (perhaps) an appellate power in addition. The precedents of each court
would be remembered afterward on like occasions, and hence local
customs would grow up at variance with established customs in the
neighboring shires.  Many such customs survive the Conquest, and
continue to the present day, an irrefutable proof of local sovereignty
among the Saxon people.3
The general legislation of the Anglo-Saxon kingdom after the
union of the crowns was done by the Witena-gemote, or council
of the wise.  It was composed of the archbishops, bishops, abbots, subject kings, carls, and thanes; and, as Prof. Lappenberg
declares, " there is no reason extant for doubting that every thane




ANGLO-SAXON SYSTEM OF LOCAL SOVEREIGNTIES.   135
had the right of appearing and voting in the witena-gemote, not
only of his shire, but of the kingdom." The powers of this imperial council, according to Kemble, were as follows:
1. They had a right to consider every public act which could
be authorized or done by the king.
2. They deliberated upon new laws which were to be added to
the existing folk-right, and which were then promulgated by the
joint authority of the king and the gemote.
3. They made alliafices and treaties of peace.
4. On them devolved the duty of electing the king.
5. They had the right to depose a king whose government
was not for the benefit of the people.
6. They, conjointly with the king, appointed prelates to vacant
sees.
7. They regulated ecclesiastical affairs.
8. They levied taxes for the public service.
9. They provided for defence, by raising forces for land and sea.
10. They had the power of recommending and assenting to
grants of land.
11. They were empowered to pronounce the lands of criminals
and intestates forfeit to the crown.
12. They were in certain cases a supreme court of judicature
both in criminal and civil matters.
Yet, with all these weighty powers, the witena-gemote was
limited in its authority, says Sir Francis Palgrave, "by the privileges of the different states composing the Anglo-Saxon empire;
and which dominions, as I have often remarked, had never amalgamated into one kingdom.  Kent, for instance, under the victorious Athelstane, had lost all the appearance of an independent state.
But when he had made a law, by the assent of the Witan of Wessex, which, according to Lappenberg, was the great council of the
united Saxon states), he could not impose it upon the men of
Kent without their concurrence. He transmitted the enactment
to them, and they then accepted the proposition by an address
which they returned to their sovereign. I can quote the very
words of such a document:
"' Beloved lord, thy bishops of Kent, and all Kentshire alder



136    ANGLO-SAXON SYSTEM OF LOCAL SOVEREIGNTIES.
men, thanes, and churls, return thanks to thee for the directions
which thou hast given us concerning the conservancy of the peace,
for great is the benefit which results to all of us, both poor and
rich, thereby.'' They then state the several articles or chapters of the statute,
being ten in number, seriatim, and signify the manner in which
they have received and modified the same. Grateful for the legislation thus bestowed upon them, the Kentishmen speak with thankfulness and humility; yet the fi)rm of the proceeding implies that
their assent, so asked, might have been refused. In proportion as the
sovereign gained in prerogative, the powers of the witena-gemote of
Wessex, the predominant kingdom, would gradually gain strength
also. The minor states annexed to Wessex would tacitly submit
to be bound by its legislation, and, from the reign of Edgar, the
lesser authorities seem in most cases to have been merged in the
three leading states or territories of Wessex, Mercia, and Danelaghe.  Mercia clearly maintained its independence; Northumbria
equally so. East Anglia seems to have been sometimes considered
as annexed to Mercia, sometimes as constituting a separate state,
and sometimes as classing with Danish Northumbria. The laws
which Edgar enacted at the request or with the assent of the Witan
of Wessex were to be implicitly observed by his own immediate
subjects. As to the others, they were to be adopted according to
the model enacted by the assembly. The laws were transmitted
to the earls by writ: it is most probable that they were usually received without hesitation, yet there was no absolute coercive power
in the crown of Wessex; and it was not until the reign of Canute
that the Mercians received King Edgar's laws."
Thus we have traced the political organization of the Saxon
empire, and from the hundred to the witena-gemote, we have
discovered everywhere the principle of local self-control, while in
the constitution of the united Saxon states, state sovereignty is
manifestly seen to be the basis of their union. Though under one king,
elected from the royal family by the joint suffrages of the freemen
of all the kingdom, yet the witena-gemotes of the respective kingdoms had an absolute power of rejecting the decrees of the great




ANGLO-SAXON SYSTEM OF LOCAL SOVEREIGNTIES.   137
national witena-gemote of Wessex, and no power of coercing states
was claimed for the crown.
But even before the conquest by the Norman, it is evident
from the quotation given above from Palgrave, that the genuine
spirit of the Saxon system had already fallen into decay.  Of the
original eight kingdoms, only three retained the vigorous vitality
of independence. One still maintained a sickly struggle, which
could hardly be deemed successful, and the remaining four had
either voluntarily united with the more powerful states, or at best
presented but a cajput mortuunz of their original defiant independence.
It is also to be observed that the centralizing influences of the stationary monarchy were sapping the foundations of the Saxon institutions. As the royal prerogative gained in power, the king's original
dominion of Wessex gained a preponderating influence, to the disparagement of her coequal sister states. The king was known
as the king of Wessex, and the witena-gemote of the united Saxon states came to be called the Witan of Wessex. Hence, though
their local liberties were still untouched by king or witan, the
great body of the Saxons had become accustomed to forget the
primitive idea of the sovereign independence of their several states,
and to the conception of a royal central power, of which the states
were merely subjects and dependants. In other words, the Saxon
principle of local sovereignty had been insidiously undermined,
and the imperial principle of absolute and centralized authority was
gradually but surely gaining ground. The notion of imperial centralism once entertained, it mattered little who should be the tyrant. Two claimants, one a Norman, one a Saxon, had a contest
for the crown, and when the sun set on the bloody field of Hastings, casting his last rays on the victorious banners of the Norman
conqueror, the crumbling fabric of the Anglo-Saxon system fell
before his feet. The men who had already sacrificed their independence to a Saxon, made no long defence against the Norman.
One fierce, bloody battle, and the sun of Anglo-Saxon freedom set,
to be succeeded by the Egyptian darkness of the feudal system.
Thus a strife of centuries was laid up for the English people; and
instead of working out their own free system through continuous
and glorious spontaneous developments, by the assistance of enlight



138     ANGLO-SAXON SYSTEM  OF LOCAL SOVEREIGNTIES.
ened Christianity and increased knowledge, they were forced to rise
by slow steps, from a state of bondage, through a din of never-ceasing battle, to their ancient heritage of freedom.
NOTE S.
1. PROBABLY the best illustration of the local character of the subordinate
Anglo-Saxon institutions is to be found in the United States.
I have thus given a very general outline of the more important Anglo-Saxon
institutions. To notice the minuter variations, special provisions, and occasional changes, would lead me into too wide a discussion, and would not aid the
purposes of so elementary a work as this: enough has been said, however, to
indicate those of our own legal ideas and forms which have a Saxon origin.
Prominent among these is that most important, and to us sacred principle of local self-government. This element lay at the foundation of the whole
Saxon polity. It has been preserved in the English shires and ancient municipal corporations or boroughs, with their immemorial privileges. In many of
the American States it is guarded with even more jealousy than in the mother
country. The New England and New York divisions of towns, each with its
own officers and stated convocations of citizens, and of counties, each with a
local representative assembly legislating for much that concerns the welfare of
the district, and a court possessing a jurisdiction co-extensive with the territorial
limits, embody with much simplicity and purity the essential idea of the Saxon
commonwealth."-PoMERoY'S Municipal Law, p. 240, 241.
2. Few persons have an adequate conception of the degree to which the
principle of local self-government is carried in England at the present day.
The following extract, therefore, will be useful:
" The principle of local self-government which exists in England has doubtless exercised very great influence in the production of the freedom enjoyed
under the Constitution. It is not intended to make an attempt to trace that influence through the gradual advance of the institutions, but only to suggest some
facts without which the full extent of the liberty and power possessed by the
people cannot be fully appreciated. The nature of the Anglo-Saxon courts and
motes was favorable to self-exertion and self-reliance on the part of the people;
but at a later period the chartered boroughs stand out conspicuously as institutions imbued with the spirit of freedom, and at the same time furnished with
power to advance and defend it. These fought out their own independence
from their feudal lords, and became the seats of self-government, on principles
opposed to arbitrary or centralized power. The burgesses, with the mayor or




ANGLO-SAXON SYSTEM  OF LOCAL SOVEREIGNTIES.    139
portreeve and aldermen as their executive officers, elected by them, regulated
the affairs of their boroughs, in trade and police, independently of any direct
supervision on the part of the crown or its officers, and without any appeal on
the part of the inhabitants except through the courts of law, when cases arose
of an illegal character. The tendency of these institutions was republican or
democratic, rather than monarchical; and the election of members to the House
of Commons being vested in the boroughs, they returned to Parliament, for the
most part, those patriots by whom the battle of the Constitution was fought.
Charles II. made an attempt to get the boroughs, returning members to Parlia.
ment, under the influence of the crown, by an attack upon their ancient charters,
and by forcing or persuading the burgesses to accept new charters; but he did
not disturb their municipal authority. That has now been regulated and brought
under one system by the act to provide for the regulation of the municipal
corporations in England and Wales. It vests in the inhabitant householders
rated to the relief of the poor, the election of burgesses, from whom the mayor
and alderman are elected. The mayor becomes a justice of the peace, and returning officer of the borough at elections of members of Parliament; and the
mayor, aldermen, and burgesses are the council of the borough, in whom, or a
majority in case of division, all authority is vested. They are empowered to
make rates on the inhabitants for watching, lighting, and paving the borough, to
appoint constables, to make by-laws, and, in general, to regulate the municipal
affairs of the borough; and all without the control or supervision (except in the
disposal of their property) of any other central authority than the courts of law
and equity.
"The affairs of the counties are, in like manner, intrusted to the management
of their principal inhabitants. The magistrates appointed by the crown, through
the medium of the lord-lieutenant, and consisting of the principal landowners
of the county, regulate the county affairs by a system of self-government.
Assembled in their court of quarter sessions, they have jurisdiction to try small
felonies, and to decide appeals from the several parishes of the county, in regard
to rates and assessments for the relief of and the settlement of the poor. They
regulate, in sessions or at county boards, the construction and repair of bridges,
public roads, shire halls, prisons, and lunatic asylums; and they superintend the
apprehension, conveyance, and prosecution of criminals, the expenses of witnesses, and of the county police. For these, in quarter sessions, they make county
rates on the freeholders. These important duties are discharged by persons
resident within the counties, and who are necessarily the most considerable contributors to the rates; and over whose acts there is no other central control than
the courts of law and equity, when cases arise in which the legality of their acts
is questioned.
" The several parishes of the kingdom exercise self-government in parochial
affairs, by the election, from the inhabitants, of churchwardens and overseers,
who administer the laws for the relief of the poor, and of boards of parishion



140      ANGLO-SAXON  SYSTEM3  OF LOCAL SOVEREIGNTIES.
ers, who discharge the various duties of the acts for the repair of the highways
and the sewers, and for the preservation of health. The magnitude of the funds
raised and distributed for the relief of the poor, throughout the kingdom, and
the effect of their distribution on the public prosperity, made it necessary to
adopt a uniform system of management and relief; and therefore the functions
of the parochial boards for relief of the poor are exercised under the superintendence of a supreme poor-law board, appointed by the crown, but responsible
to Parliament. Its president is usually in the cabinet, and a member of the House
of Commons. There is also a supreme board of health, but with these exceptions, the administration of the local affairs of each division and subdivision of
the kingdom is vested in its inhabitants, with an authority controlled only by
the law and the courts of justice.-ROWLAND'S Mfanual of the _English Constitution, p. 570-572."
3. The following, from Blackstone, will serve to show the influence of the
Saxon courts in establishing the present local customs of England:
"The second branch of the unwritten laws of England are particular customs,
or laws which affect only the inhabitants of particular districts.
"These particular customs, or some of them, are without doubt the remains
of that multitude of local customs before mentioned, out of which the common
law, as it now stands, was collected at first by king Alfred, and afterward by
King Edgar and Edward the Confessor; each district mutually sacrificing some
of its own special usages, in order that the whole kingdom might enjoy the
benefit of one uniform and universal system of laws. But, for reasons that have
been now long forgotten, particular counties, cities, towns, manors, and lordships, were very early indulged with the privilege of abiding by their own
customs, in contradistinction to the rest of the nation at large: which privilege
is confirmed to them by several acts of Parliament.
" Such is the custom of gavelkind in Kent and some other parts of the king.
dom (though perhaps it was also general till the Norman conquest), which
ordains, among other things, that not the eldest son only of the father shall
succeed to his inheritance, but all the sons alike; and that, though the ancestor
be attainted and hanged, yet the heir shall succeed to his estate, without any
escheat to the lord. Such is the custom that prevails in divers ancient boroughs,
and therefore called borough-english, that the youngest son shall inherit the estate
in preference to all his elder brothers. Such is the custom in other boroughs
that a widow shall be entitled, for her dower, to all her husband's lands; whereas
at the common Jaw she shall be endowed of one third part only. Such also are
the special and particular customs of manors, of which every one has more or
less, and which bind all the copyhold and customary tenants that hold of the
said manors.-Such likewise is the custom of holding divers inferior courts, with
power of trying causes, in cities and trading towns, the right of holding which,
when no royal grant can be shown, depends entirely upon immemorial and




ANGLO-SAXON SYSTEM  OF LOCAL SOVEREIGXNTIES.    141
established usage. Such, lastly, are many particular customs within the city of
London, with regard to trade, apprentices, widows, orphans, and a variety of
other matters.
" All these are contrary to the general law of the land, and are good only by
special usage; though the customs of London are also confirmed by act of
Parliament."-BLACKSTONE'S Commentaries, i. 74, 75.




CHAPTER II.
THE FEUDAL SYSTEM OF CONSOLIDATED MILITARY POWER.
ORIGIN OF THE FEUDAL SYSTEM —NATURE OF THE FEUDAL TENURE OF LAND IN
CONSIDERATION  OF MILITARY SERVICE-SOCAGE-HOMAGE-ALLEGIANCEAMOUNT OF SERVICE-SCUTAGE-RELIEFS-HERIOTS-FINES ON ALIENATIONESCIIEATS-AIDS-WARDSHIP-MARRIAGE-CONVERSION OF ALLODIAL LANDS
INTO FEUDAL TENURES-SERFDOM-ESTABLISHMENT OF FEUDALISM IN ENGLAND.
THE Saxon and the feudal systems were exact antipodes. The
former, as we have already shown, was one of independent local
sovereignties in the hands of freemen.  The latter was a rising
series of consolidated military powers, reaching its climax in a
central monarchy which tolerated not one freeman.
The feudal system sprang up upon the continent of Europe,
among the German tribes of Normans, Franks, Burgundians,
Visigoths, and Lombards, who swept down upon the falling Roman
Empire, and divided its vast territories among themselves. It is not
our purpose to give its history. It doubtless had its moving cause
in the custom of the German warriors, which we have mentioned in
the previous chapter, of joining themselves to military chiefs, whom
for their martial glory they regarded with an almost superstitious
reverence.  In their invasions of the south, these chiefs in like
manner united under various leaders, who on their conquest of the
several provinces, became their kings.  Here it was not long ere the
civilization of the vanquished gained upon the victors, who without
much difficulty adopted the religion and laws of the Empire.
Under the teachings of the Christian priesthood-always forward in
supporting kingly and imperial prerogative-the sovereigns and
their subjects learned to look upon the royal office in a yet more
lofty point of view.  The ceremonies of the church in the anoint



FEUDAL SYSTEM OF CONSOLIDATED MILITARY POWER. 143
ing and investiture of these barbarian princes made a strong impression on the warm imaginations of the newly converted Northmen. Henceforth the king became to them God's representative
in civil matters, as the priest was in the matters of the faith, and,
next to God and holy church, they gave implicit submission to
the anointed king, who was supposed to hold his office by divine
appointment. Meanwhile, jurists learned in the law were not
behind the priesthood in supporting and increasing the pretensions
of the kings. They taught that these barbarian sovereigns were
the successors of the Coesars, and that all the high prerogatives of
the imperial crown were now legitimately vested in them. Moreover, they had gained their title by conquest, and had consequently
every right claimed by the emperors in subjugated territories.
Hence the lands they had subdued were the king's individual property. This was a mighty cornerstone of the feudal system; and
upon this, with the other notion, that the king's right was a right
divine, that is, a right of God, the whole tremendous fabric may be
said to have been based.  But though he was the absolute proprietor of all the lands within his territories, it was impossible on any
system for a single man personally to enjoy so wide a domain.
The lands of the kingdom were therefore distributed among the
warriors who had followed him.  Not that they thereby were
invested with the ownership of these lands.   The ownership
(dominiuns directum) rested with the king.  But they received the
actual possession and profitable use of them (dorniniuzm Wetile).
Thus the king was able to reward his faithful retainers, by making
to them grants of land under the name of benefices.
Under these beneficial grants we find the first historic traces
of the feudal system.  The benefice was not an absolute gift vesting the recipient with the ultimate ownership; that still remained
in the king, and the grant was liable to be revoked at any disloyal
or hostile act of the beneficiary. In return for this gift to him
from the monarch, the subject was bound to give the king, when
called upon, his military service and aid, from time to time, as they
should be required.  Thus the favored subject entered into the
possession of the land, and enjoyed all of its benefits as though he
were the absolute owner: still, as he was not the absolute owner, he




144 FEUDAL SYSTEM OF CONSOLIDATED MILITARY POWER.
was said, in the subsequent language of the feudal law, to hold the
land of his sovereign; and the method or relation by which he thus
held was denominated a tenure, or holding. (POM. p. 255).
Sometimes the grant was for the life of the grantor; but more
generally for that of the grantee. At what time custom or agreement made the enjoyment of the property hereditary in the family
of the grantee, we have no means of accurately ascertaining in any
country. As late as the end of the sixth century, the lands which
had been parcelled out returned in most European states to the
prince, and were only continued to the family as an act of favor,
and by a new gift; although undoubtedly instances of hereditary
tenure occurred even at this early date.
Now a benefice (beneficium), or grant of land by a chief to his
followers upon condition of military service, was called a fief, feud,
fee, or feo (from leo, wages, and od, land), and it constituted the
grantee a feudatory, or vassal of the chief or superior to whom he
owed service in consideration of the land. The use of the land
was his wages, which he earned for doing service to his master, the
owner or grantor of the land.  This, we repeat, is the cornerstone
of the feudal system. It is the root from which all its peculiarities
spring.
Attempts have been made to deduce the feudal relations
from other sources. It has been said that traces of it are to be
found in the customs of the Germans and Saxons; and the relation
of chief and follower was no doubt the moving cause which led
those hardy people to adopt the system so universally. But it is to
be remembered that the companions of the chief cannot be likened
to vassals, to whom, indeed, they bear a very faint resemblance;
and that, in their primitive abode, payment of any kind, and certainly in land, was altogether wanting. Some have imagined that the
feudal relation is to be traced in the Roman connection of patrons
and clients-a practice, among men of consequence and power, of
taking under their protection inferior persons, who rendered in return such services as were within their means, often paying money,
and not unfrequently bequeathing property, to their patron. But
no real resemblance exists between the two cases; for here, again, in
the Roman custom there is no holding of land in consideration of




FEUDAL SYSTEM OF CONSOLIDATED MILITARY POWER. 145
allegiance and service.  The only case which resembles feudal service in the early history of Europe is to be found in the reign of
Alexander Severus at the beginning of the third century, who settled some barbarous tribes along the Danube, making to them grants
of land on the express condition of their serving him in wars
against the neighboring tribes.
This was a simple feudal tenure, arising out of circumstances
identical with those out of which the feudal relation grew and became general two centuries later; and on reflection it seems probably the most natural form in which the custom of free companionship prevailing in the unsettled German tribes could coalesce with
the imperial power appropriated by their chiefs, on their establishment as settled rulers of the conquered Romans and provincials.
When a chief, then, established himself and parcelled out the
lands seized, the leading companions of the expedition shared some
of the lands taken, on condition of allegiance and military service.
When the feuds became hereditary and the favor of succeeding
princes had increased the grants, the comnites or counts possessing
large tracts exercised great influence in the state.  For the acquisition of feuds, when the tenures became hereditary, and perhaps
even sooner, was attended with another operation. As the practice
of renting land was unknown, whoever had more land given him
than he could cultivate, whether a count or any inferior person, was
obliged to make a similar grant to other persons, in return for which
they were to do him service. Thus every one who had a considerable estate given him, retained part for himself, and parcelled out
the rest among inferiors, who rendered him the same service as he
rendered to the chief or prince-following him in war when he followed the prince, assisting him in peace, and attending his courts.
The practice of making these inferior grants of land was called
sub-infeudation, and originally there was no limit to it.  The
smaller proprietors had of course fewer inferior vassals, or subfeudatories; but, like the counts and other important vassals of the crown,
they had the same courts and administration of justice over their
vassals as the king himself over his tenants in capite, or tenants in
chief. From this distribution of land among the crown's vassals,
and by them among their dependants, arose, the great power of the'/




146 FEUDAL SYSTEM OF CONSOLIDATED MILITARY POWER.
feudal lords or barons; for the allegiance of their feudatories to
them was in theory as rigorous as their own to the sovereign; and
in practice it was much more effectual.  The count or baron passed
his whole time at home, surrounded by his followers, who also were
the suitors or members of his courts where justice was administered,
while the more distinguished among them were his companions in
the chase and at his feasts.  Occasionally the great lord might go
to the sovereign's court, and in his wars he accompanied his armies;
but the constant occupation of his life was such as to maintain his
power over his own vassals.'
It happened, however, that in every country overrun by the
barbarians, a considerable portion of the land remained the property
of the former inhabitants, and some part of it was granted out in
absolute possession, without any direct obligation of service.  This
land was called allodial, and its holders allodists, or allodial proprietors; but its amount in every country underwent constant diminution. This was principally owing to the disordered state of society,
and the insecurity arising from thence and from foreign invasion,
During many centuries there was continual commotion; petty private wars were waged between the feudal lords; there was no generally acknowledged law and no respect for private property; and
the allodial proprietors having incurred no obligation of service, and
therefore having no title to protection from the sovereign and no
laws from which to seek redress, were exposed to the perpetual
rapacity of counts and other nobles.  " The owners of the castles
and fastnesses would sweep down upon these proprietors, ravage their
possessions, and carry them off, to be ransomed at any exorbitant
charges. The military tie of lord and vassal was the only barrier to
these attacks, for while it imposed a duty of warlike service upon the
vassal,it also afforded the protection of the lord."  Hence many
allodial proprietors surrendered their lands into the hands of some
more powerful proprietor, to receive them back as feuds, with
the condition of allegiance and service imposed upon them, but also
with the duty of protection cast upon the lord.  Even those lords
themselves, owners of larger allotments, were frequently reduced by
similar apprehensions to become vassals of the crown in respect of
lands formerly held by them as allodial; and to such an extent was




FEUDAL SYSTESM OF CONSOLIDATED MILITARY POWER. 1- 7
this practice of infeudation carried, that in the tenth and eleventh
centuries it appears that almost all the allodial possessions of
France had been converted into feudal tenures held by vassals of
superior lords on the condition of military service.
When the feudal relation had become established, it extended
itself to various kinds of property, not in their nature the subject
of such a conditional holding. Thus rents, tolls, pensions, tithes, and
offices we're made the subjects of feudal grant, and given on condition of military service.  Even perquisites of the priests for saying
mass were sometimes seized by the barons, and held by them of the
church, on the condition of giving their service in protecting it;
and such spoils were shared by sub-infeudation among their followers. But some lands, and generally property in towns, were in
England held for fixed payments, or for services not military  and
this was called socage, or free and certain service.
Having now traced the establishment of the feudal relation of
lord and vassal, we are next to examine the rights and duties which
it conTstituted, and the important effects which it produced upon
the structure of the government and the condition of society.
The first duty of the vassal to the lord was allegiance.  He did
homage by uncovering his head and ungirding his sword, and kneeling before the lord, in whose hands he placed his own.  In this attitude he solemnly promised to become his zman-homme (whence
the word homage); and to serve him faithfully with life and limb
in return for the land held of him. This ceremony generally was
ended by his kissing the lord's cheek, and the lord kissing his mouth;
and a remnant of this is retained in England at the coronation of the
king, the peers all kneeling before the king uncovered, and then kissing his cheek.  The bishops still do homage to him for their temporal possessions, which return to the crown on the see being vacant,
and are granted again to the successor. The homage, chiefly confined
to military tenure, was performed to the lord in. person.  The oath
of fidelity, or fealty, which belonged to all tenures, followed; but
the lord might receive it by proxy.2  The investitzre of the vassal
in the land was that for which he owed allegiance, and the lord
either gave actual possession on the spot, or delivered it over by
symbols, as turf for a field, a stone for a house, and so forth.




148 FEUDAL SYSTEM OF CONSOLIDATED MILITARY POWER.
Allegiance comprehended the duty of attempting nothing
against the lord, disclosing all information that might affect him,
and not divulging his counsel when trusted by him. The vassal
was also bound to side with him in war, and be a hostage for him
if captured. But military service, to which was added suit service,
or attendance on the lord's court, was the most important duty, and
in most cases, perhaps at first in all, was the foundation of the tenure.
Allegiance was at all times due, and continued always the same.
Military service was originally coextensive with allegiance, and was
due whenever the lord was attacked. Whether, if he waged offensive war, the same absolute right existed to the vassal's service,
may be questioned. Cresar tells us that the ancient Germans volunteered to accompany their chief on an.expedition which he announced at a general assembly, and that, having once promised, it
was infamy not to perform.  Probably, then, the barbarians, when
they settled and granted out lands in feudal tenure, held assemblies
where the expedition was resolved upon, and the lord had a right
to service while it lasted. But by degrees this came to be regulated and limited, and the vassals became bound to serve only a
given number of days, each according to the extent of his possession. Thus, for a knight's fee (or land of the value of twenty
pounds a year), forty days were due; which in France was extended
to sixty days. But in the course of time the extent of service came
to be specified in the deed or charter by which the land was granted. Men of sixty, women, priests, and public functionaries, were allowed to find substitutes. Sometimes the service was limited to
the lord's territory; sometimes it was general and unrestricted.
The non-performance incurred a forfeiture of the land to the
lord, because it was a breach of the condition upon which the grant
had been made. But afterward the practice grew up of commuting the service for a fine, which was called escuage, or sctnage, and
proved a source of revenue to the chief.
But besides the service of war, other rights were possessed by
the lord, some of them connected with the land, and arising from
its having been originally his own altogether, and never wholly
given to the vassal; others acquired by usurpation upon the vassal
As the land was at one time granted for life, when the lord gave




FEUDAL SYSTENI OF CONSOLIDATED MILITARY POWER. 149
it at a vassal's death to his heir, he exacted something in consideration of the favor. This was called a relief (from re, back, and levare, to raise), as if the land had fallen into the lord's hands, and
was to be relieved out of them by payment of the fine; or had fallen down, as it were, and was to be raised up again. The amount
to be paid was probably at first quite arbitrary-as much as the
lord chose to ask, and the vassal could afford to pay. Afterward
it became fixed by custom, and even by law. The charter of
Henry I., of England, enacted that reliefs in future should be reasonable, and Magna Charta fixed them at what was supposed to
be one fourth of the yearly real value.  In some countries, relief
was also due on the death of the lord; and at the present day, we
find the remains of this, as well as the ordinary relief, in many
manors in the North of England, where copyholders pay a fine,
on the death both of the lord and of the tenant.  It is most probable that this kind of relief, on the lord's death, originated in the
remoter period, when the feud was granted wholly at pleasure, or
at least, only during the grantor's life; and when he died, the
heir, not being bound to continue the grant during the vassal's life,
required a consideration for remembering his ancestor's grant.  Heriots, still known in some English manors, are probably another remnant of the temporary nature of the feud out of which reliefs
arose.  They are due on the tenant's decease, and consist of his
best chattel. A valuable racehorse was some years ago claimed
in Surrey as a heriot.   The same custom  prevailed in  Italy
and France as early as the eleventh century; in England, at least
two centuries before. The custom with regard to reliefs differed in
different countries.  Thus, in most parts of France, they were not
due at all on direct, but only on collateral succession.  This, however, may have been a limitation of late introduction, when the
right of inheritance was established. Originally, they were probably due on all descents alike.
The right to alienate the feud was of comparatively late introduction; for the fealty and service of the vassal were properly personal, and could not be transferred.  Indeed, the original relation
of lord and tenant was so strict, that neither party could dissolve it
at pleasure. The lord's consent was necessary to a change of ten



150 FEUDAL SYSTEM OF CONSOLIDATED MILITARY POWER.
ant; the tenant's to a change of lord; expressed by a form called
his attornment, which continued to be required in England until the
eighteenth century. At a much earlier period, however, the lord had
become accustomed, in all feudal states, to permit alienation by the
tenant, upon payment of a sum of money, and the person to whom
the transfer was made became the lord's vassal, and did homage
upon admission as tenant.
When feuds became hereditary, they descended either according
to the order of succession pointed out in the grant, or according to
some general law of succession prevailing in the state at large, or
confined to the particular district.  It was not till late in the history of most nations that the right to dispose of property by will
was introduced, and it may be asserted that while the feudal system
remained in full force, no such power was enjoyed generally in any
part of Europe.  When it was given anywhere, it at first extended
only to a part of the land, the rest being still required to go in a
particular line pointed out by the original terms of the grant, or
the general law of the state, or the local law of the district. But
while the feudal system remained entire, the death of the vassal
without heirs, or without such heirs as were designated in the grant,
caused the fief to return, fall, or escheat, as it was called, to the
lord. The word signifies a casualty, or falling in consequence of
an accident. But want of heirs was not the only cause of forfeiture.  If the vassal committed any act inconsistent with his fealty,
the fief returned to the lord; and refinements were introduced, by
which many things were held to be constructive rebellion, or contempt of the lord's authority. Thus, encroaching on his share of
the land, whether on the waste not parcelled out, or on the lord's
private property, as well that of which he had the beneficial ownership as that of which he had the feudal dominion, was termed purpresture or pouzrprision, and forfeited the feud to the lord; though in
England this term has for ages been confined to encroachments upon
the crown's rights. Thus, too, disclaiming the lord's right and
the tenure under him was a cause of forfeiture.  And in general
alienating without license, and even making certain alterations upon
the form and disposition of the land, were causes of forfeiture.
But besides these rights and perquisites which arose out of the




FEUDAL SYSTEM OF CONSOLIDATED 31ILITA].Y POWER. 151
relation between the lord of the soil and him who had only the enjoyment, and that limited, of its fruits, there were others which
grew out of the vassal's allegiance and dependence upon the superior.
Of tiese, aids were the chief.  They were sums, like a tax or
contribution, levied upon all the vassals, to defray expenses of the
lord on certain extraordinary occasions-such as a pilgrimage to the
Holy Land; the costs of his own relief to an over lord; the making his eldest son a knight; the portioning his eldest daughter;
and his ransom, if taken in battle.
These three last are alone permitted by Magna Charta; and by
the laws of France and other Continental monarchies, ward or
wardship and marriage were not so universally established as the
aids of which we have just been speaking. But in England they
existed, and to an oppressive extent, as they also did in Germany
and in Normandy.  On the ground of training the infant vassal
to arms after his father's death, and because he lost his service
during his minority, the lord took possession of his estate until he
became of age; and an abuse of a vexatious kind soon crept inthe lord bestowing the guardianship and possession of the land
upon strangers, from favor or for money. This was called, in English law, guardianship in chivalry, and was only abolished first during the Commonwealth, and then by a perpetual act at the Restoration, after having been the source of extreme oppression down to
that late period.
Xlarrizge (martagtiun) was the right to marry a ward, and receive a price for the match. The custom was still more rigorous
in Jerusalem, where the Crusaders introduced the feudal system;
for there, maiden or widow, in order that there might never be
wanting a male vassal to perform service, was compelled to take one
of three husbands presented to her by the lord, unless she was
sixty years old, and resolved to die single.  In some parts of Germany and France, and in Scotland till the eleventh century, it is
certain that a custom more outrageous still prevailed, the lord
having a right to enjoy the person of the vassal's bride.  This,
in France, was called droit da seqineur, and in Scotland the fine
paid for it was termed woman's marL; but it is doubtful whether it
existed in respect of the vassals who held by military service, or




152 FEUDAL SYSTEM OF CONSOLIDATED MILITARY POWER.
was only incident to other tenures of a baser kind.  Of these it is
now necessary to speak.
We have hitherto confined our attention to those persons who,
being soldiers, companions in arms of the chief, freemen and warriors, shared the fruits of the conquests made, and obtained land
either freely and unconditionally, or on the condition of certain
allegiance and service-the holders of the former or allodial land
gradually becoming holders by feudal tenure. There existed, however, in all the provinces overrun by the northern nations, a twofold
division of the inhabitants, some being freemen and some being slaves.
In all parts of the Roman Empire the legal right and the practice
was established of holding persons in absolute slavery; and that
the barbarians found the people in this state is plain, among other
things, from the laws of the Burgundians, which mention their
having, on their settlement in France, seized two thirds of the land,
and one third of the slaves or serfs.
But the northern nations had also slavery as a part of their
own customs, although their domestic slaves were in an easy condition, and did not much differ in their circumstances from  the
other poorer classes of the community. Captives made in war;
persons who sold themselves, or who were sold by their parents
from poverty; convicts condemned to pay fines, and made slaves
on default; gamesters who staked their personal liberty upon the
issue of play, to which the Germans were passionately addictedall these classes increased the number of slaves among those rude
nations. Upon conquering any district, they sometimes reduced all
the people to slavery, except such as could ransom themselves.
Subsequently, revolt or other acts of violence extended the numbers of the slaves.  Another reason operated in the same direction.
The violence of the early feudal times, and the consequent dangers
in which poor men were placed, made it highly desirable to obtain
protection from the more powerful members of the community.
Personal protections were obtained from these lords, called commendatio)?s, resembling the patronage of the Romans, or the relation
in which the upper classes stood toward their clients.  For this
protection, payments in money were made, called salvamenta, or salsayes, and many who could pay nothing, became serfs or slaves to




FEUDAL SYSTEM  OF CONSOLIDATED MILITARY POWER. 153
such as would not be content with mere allegiance or with occasional
service.  Allodial proprietors used at first to obtain commendations,
as they had no law to protect them, until by degrees the tenure of
their land became feudal, as we have already seen.  Men who had
no land were deprived of this resource, and very often became serfs.
Many, too, in those superstitious ages, parted with their liberty to
monasteries and churches in return for their prayers and masses,
together with some small share of their temporal possessions.  It
thus happened that, as all the land became feudal, and the maxim
of the law arose, "Nulle terre sans seigneur "-"No land without a
lord"-so almost every one was either a vassal in respect of his
land, or a serf in respect of his person, and the common people
came to be almost universally in a state of slavery.
But land in those countries constituted the whole, or nearly the
whole, wealth of the community. It was in some sort, too, the
currency in which services of every kind were paid. A proprietor
desiring to retain the services of any one, gave him a rent issuing
out of his land; and this constituted him a vassal; for it was by
a refinement of the feudal law reckoned (not feudurn, but) quasi
feudunz-a kind of fief, or an improper fief-a fee or feud of land.
In order to obtain inferior services, or to support serfs, they were
settled on small portions of land in the neighborhood of the lord's
residence, and these allotments were entirely held at will by the
serfs, whom the lord could at any time dispossess. Thus, to obtain
land, needy freemen became serfs-another source of domestic
slavery. But this kind of contract had very important consequences; for as the servitude of these voluntary slaves only could
-last as long as they held the land, they and their children came no
longer to be regarded as tenants at will, and liable to be dispossessed; and so the slaves, who had no rights at all, but were merely
settled on their owner's land as the best way of supporting them
and securing their services, came gradually to be considered like
the others, and were allowed first to retain their allotments for life,
afterward to transmit them to their children, and finally to their
collateral heirs. No uniform rule, however, was established as to
these rights or permissions.  Different lords gave different rights
and different courses of succession; different rights of alienation
17*




154 FEUDAL SYSTEM OF CONSOLIDATED MILITARY POWER.
by conveyance or by will were established in different districts or
lordships, and different sums were paid to the lord as fines upon
descent or alienation.  One thing, however, was common originally
to the whole-some service was exacted by the lord, and this service was of an inferior or base kind; never the military service by
which free land was held by the freemen, vassals of the lord. These
were the freeholders of each manor or lordship, owed suit service
to the freeholders' court,and were bound to follow the lord in war.
But the serfs, even when established in their rights of property,
only attended customary courts of an inferior kind, and served the
lord in a humbler way.
Thus, throughout the whole of what was once the Empire of
the West, the feudal system was effectually established; and thus,
from the degraded serf, who eked a miserable sustenance from
the allotment made him by the holder of a knight's fee, who, perhaps, was vassal to a baron holding from some count, who was
retainer to a duke, who was tenant in capite, or the immediate vassal of the king himself, until we reach the royal head of this vast
system of servitude, we find not one freeman.  True, the terms of
the relationship were made to seem sufficiently inviting.  Nominally " the feudal relation of lord and vassal was one of mutual
support and assistance.  Heavy burdens were laid upon the one,
but they demanded corresponding duties and obligations from the
other. If the vassal was bound to furnish an uncertain amount of
personal military attendance to his superior, in his wars, public
or private, and in later times to contribute much money, the lord
was in turn obliged to warrant and secure his dependant in the
quiet possession of his land, and to defend him against all enemies."
No language, however, can conceal the fact that the whole system
was one of petty despotisms, rising to an irresponsible and central
military head; that it was emphatically a system of brute force;
that it gave no defence from lawlessness but by submission to a
lawless tyranny; that it reduced the poor man to a state of slavery,
and that the best it could make any man was the bound vassal of a
higher lord than he.
Such was the substitute for the free Saxon institutions,brought
to England by the Norman conqueror, and we repeat what we




FEUDAL SYSTEbM OF CONSOLIDATED MILITARY POWVER. 155
asserted in the first page of the present chapter-that it was a rising
series of consolidated mlnitary powers, reaching its clizax in a central
monarchy which tolerated not one true freeman.  But fortunately for
the liberties of Engla-nd, William made himself too powerful. The
royal power in France had been reduced almost into contempt by
the immense power of the immediate feudatories of the crown.
The counts and dukes-though nominally vassals of the kingholding enormous territories, and, by the practice of sub-infeudation, having multitudes of military followers, had become in
reality all but independent sovereigns. William himself, as duke
of Normandy, had been too powerful to pay much respect to his
French suzerain; but in distributing the lands of his defeated
Saxon subjects among the Norman knights whose swords had won
his crown, he saw to it that none should be so powerful as to dare,
in any case, contest the royal will.  He thus made tyranny over
the barons possible whenever he or his successors should desire to
play the tyrant.  The result could not be doubtful.  Tyranny,
when possible, is always certain.  He had made the individual
barons too weak individually to make an issue with the king.
When, therefore, royal tyranny became intolerable, the resistance
to it necessarily assumed the best form of resistance to a tyranny
-that of a united and determined coalition.  Better still, it made
the Saxon commons an important element in the baronial contests
with the crown; and hence the charters, wrung from kings in
England by the hands of nobles, have invariably been charters of
the people's rights much more than of baronial privileges.  Thus,
through generation after generation, the united lords and commons,
making common cause for rights and liberties dear to them both,
have gradually won back to the people from the royal power what,
but for the insatiable rapacity and keen sagacity of William, they
might never have united to achieve. How the first great step of
this mighty march was made we shall proceed to tell hereafter.3




156  FEUDAL SYSTEM  OF CONSOLIDATED  MILITARY  POW'ER.
NOTES.
1. Guizot on the Social Working of the Feudal System.-" Let us investigate
this society in itself, and see what part it has played in the history of civilization.  First of all, let us take feudalism  in its most simple, primitive, and
fundamental element: let us consider a single possessor of a fief in his domain,
and let us see what will become of all those who form the little society around
him.
" He establishes himself upon an isolated and elevated spot, which he takes
care to render safe and strong: there he constructs what he will call his castle.
With whom does he establish himself? With his wife and children; perhaps
some freemen who have not become proprietors, attach themselves to his person, and continue to live with him at his table. These are the inhabitants of
the interior of the castle. Around and at its foot, a little population of colonists
and serfs gather together, who cultivate the domains of the possessor of the
fief. In the centre of this lower population, religion  plants a church; it brings
hither a priest.  In the early period of the feudal system, this priest was commonly at the same time the chaplain of the castle and the pastor of the village:
by and by these two characters separated; the village had its own pastor, who
lived there beside his church.  This, then was the elementary feudal society,
the feudal molecule, so to speak. It is this element that we have first of all to
examine. We will demand of it the double question which should be asked of
all our facts: What has resulted from it in favor of the development, 1, of man
himself-2, of society?
" We are perfectly justified in addressing this double question to the little
society which I have just described, and in placing faith in its replies; for it was
the type and faithful image of the entire feudal society.  The lord, the people
on his domains, and the priest: such is feudalism  upon the great as well as the
small scale, when we have taken from it royalty and the towns, which are distinct and foreign elements.
" The first fact that strikes us in contemplating this little society, is the prodigious importance which the l ossessor of the fief must have had, both in his
own eyes, and in the eyes of those who surrounded him.  The sentiment of
personality, of individual liberty, predominated in the barbaric life.  But here
it was wholly diiterent: it was no longer only the lib erty of the man, of the
warrior; it was the importance of the proprietor, of the head of the family, of
the master, that came to be considered. From this consideration an impression
of immense superiority must have resulted; a superiority quite peculiar, and
very different from everything that we meet with in the career of other civilizations.  I will give the proof of this.  I take in the ancient world some great
aristocratical position, a Roman patrician for inistance. Like the feudal lord, the




FEUDAL SYSTEM  OF CONSOLIDATED MILITARY POWER. 157
Roman patrician was head of a family, master, superior.  He was, moreover,
the religious magistrate, the pontiff in the interior of his family. Now his importance as a religious magistrate came to him from without; it was not a purely
personal and individual importance; he received it from on high; he was the
delegate of the Divinity; the interpreter of the religious creed. The Roman
patrician was, besides, the member of a corporation which lived united on the
same spot, a member of the senate; this again was an importance which came
to him from without, from his corporation, a received, a borrowed importance.
The greatness of the ancient aristocrats, associated as it was with a religious
and political character, belonged to the situation, to the corporation in general,
rather than to the individual. That of the possessor of the fief was purely individual; it was not derived from any one; all his rights, all his power came to
him from himself. He was not a religious magistrate; he took no part in a
senate; it was in his person that all his importance resided; all that he was, he
was of himself, and in his own name. What a mighty influence must such a
situation have exerted on its occupant! What individual haughtiness, what prodigious pride-let us say the word-what insolence must have arisen in his soul!
Above himself there was no superior of whom he was the representative or interpreter: there was no equal near him; no powerful and general law which
weighed upon him; no external rule which influenced his will; he knew no curb
but the limits of his strength and the presence of danger.  Such was the necessary moral result of this situation upon the character of man.
" I now proceed to a second consequence, mighty also, and too little noticed,
namely, the particular turn taken by the feudal family spirit.
" Let us cast a glance over the various family systems. Take, first of all, the
patriarchal system of which the Bible and oriental records offer the model. The
family was very numerous, it was a tribe. The chief, the patriarch, lived therein in common with his children, his near relations, the various generations which
united themselves around him, all his kindred, all his servants; and not only
did he live with them all, but he had the same interests, the same occupations,
and he led the same. life. Was not this the condition of Abraham, of the Patriarchs, and of the chiefs of the Arab tribes who still reproduce the image of the
patriarchal life
"' Another family system presents itself, namely, the clan, a petty society, whose
type we must seek for in Scotland or Ireland. Through this system, probably, a
large portion of the European family has passed.  This is no longer the patriarchal familv.  There is here a great difference between the situation of the
chief and that of the rest of the population. They did not lead the same life.
The greater portion tilled and served, the chief was idle and warlike. But they
had a common origin: they all bore the same name, and their relations of
kindred, ancient traditions, the same recollections, the same affections, established a moral tie, a sort of equality between all the members of the clan.
"These are the two principal types of the family society presented by history.
But have we here the feudal family?  Obviously not. It seems at first that the




158  FEUDAL SYSTElM!  OF CONSOLIDATED MILITARY POWER.
feudal family bears some relation to the clan; but the difference is much greater
than the resemblance. The population which surrounded the possessor of the
fief were totally unconnected with him; they did not bear his name: between
them and him there was no kindred, no bond, moral or historical. Neither did
it resemble the patriarchal family. The possessor of the fief led not the same
life, nor did he engage in the same occupations with those who surrounded him;
he was an idler and a warrior, while the others were laborers. The feudal family
was not numerous; it was not a tribe; it reduced itself to the family, properly
so called, namely, to the wife and children; it lived separated from the rest of
the population, shut up in the castle. The colonist and serfs made no part of it:
the origin of the members of this society was different, the inequality of their
situation immense. Five or six individuals in a situation at once superior to
and estranged froml the rest of the society-that was the feudal family. It was
of course invested with a peculiar character. It was narrow, concentrated, and
constantly called upon to defend itself against, to distrust, and at least to isolate
itself from, even its retainers."
" No doubt, after a certain time, some moral relations, some habits of affection,
became contracted between the colonists and the possessor of the fief. But this
happened in spite of their relative position, and not by reason of its influence.
Considered in itself, the position was radically wrong.  There was nothing morally in common between the possessor of the fief and the colonists; they constituted part of his domain; they were his property; and under this name property were included all the rights which, in the present day, are called the rights
of public sovereignty, as well as the rights of private property, the right of imuposing laws, of taxing, and of punishing, as well as that of disposing of and selling.
As far as it is possible that such should be the case where men are in presence of
men, between the lord and the cultivators of his lands there existed no rights,
no guarantees, no society.
"Hence I conceive the truly prodigious and invincible hatred with which the
people at all times have regarded the feudal system, its recollections, its very
name. It is not a case without example for men to have submitted to oppressive despotisms, and to have become accustomed to them; nay, to have willingly accepted them. Theocratic and monarchical despotisms have more than
once obtained the consent, almost the affections, of the population subjected to
them. But feudal despotism has always been repulsive and odious; it has oppressed the destinies, but never reigned over the souls of men. The reason is
that in theocracy and monarchy, power is exercised in virtue of certain words
which are common to the master and to the subject; it is the representative, the
minister of another power superior to all human power; it speaks and acts in the
name of the Divinity, or of a general idea, and not in the name of man himself,
of man alone. Feudal despotism was altogether different; it was the power of
the individual over the individual; the dominion of the plersonal and capricious
will of a man. This is, perhaps. the only tyranny of which, to his eternal honor,




FEUDAL SYSTEM  OF CONSOLIDATED MILITARY POW-ER.  159
man will never willingly accept. Whenever, in his master, he beholds a mere
man, from the moment that the will which oppresses him appears a merely
human and individual will like his own, he becomes indignant, and supports
the yoke wrathfully. Such was the true and distinguishing character of feudal
power; and such was also the origin of the antipathy which it has ever
inspired.-History of Civilization.
2. Act of Homage and Fealty.-It may be worth while here to give the
ceremonies performed in conferring feudal tenures:
"The manner of entering into the homage of another is this: that is to say,
the feudal seigneur must be requested, with bare head, by the man who wishes
to do faith and homage, to be received into his faith; and if the seigneur will,
he sits down, and the vassal unbuckles his girdle, if he have one, lays down his
sword and staff, kneels on one knee, and says these words:'I become your man
from this day forth, of life and limb, and will hold faith to you for the lands I
claim to hold of you.' And when the freeholder shall do fealty to his lord, he
shall put his right hand upon a book, and shall say these words:' This hear, my
lord, that I will be faithful and loyal to you, and will keep faith to you for the
lands which I claim to hold of you, and will loyally fulfil unto you the customs
and services that I shall owe you on the conditions belonging thereto, so help
me God and the saints.' And then he shall kiss the book; but he shall not
kneel when he does fealty, nor make so humble a reverence as is before prescribed for homage. And there is a great difference between doing fealty and
doing homage; for homage can only be done to the seigneur himself, whereas
the seneschal of the seigneur's court or his bailiff may receive fealty in his
name."
3. Oppressions of the Feudal System in England.  "In England, women
and even men, simply as tenants in chief, and not as wards, fined to the crown
for leave to marry whom they would, or not to be compelled to marry any other.
Towns not only fined for original grants of franchises, but for repeated confirmations. The Jews paid exorbitant sums for every common right of mankind,
for protection, for justice. In return they were sustained against their Christian debtors in demands of usury, which superstition and tyranny rendered
enormous. Men fined for the king's good will; or that he would remit his
anger; or to have his mediation with their adversaries. Many fines seem, as it
were, imposed in sport, if we look to the cause, though their extent and the
solemnity with which they were recorded, prove the humor to have been differently relished by the two parties. Thus the bishop of Winchester paid a tun of
good wine for not reminding the king (John) to give a girdle to the countess
of Albemarle; and Robert de Vaux five best palfreys, that he might hold his
peace about Henry Pinel's wife. Another paid four marks for leave to eat (pro
licentid comedendi). But of all the abuses which deformed the Anglo-Norman
government, none was so pernicious as the sale of judicial redress. The king,




160  FEUDAL SYSTEM  OF CONSOLIDATED MILITARY POWER.
we are often told, is the fountain of justice; but in those ages it was one which
gold alone could unseal. Men fined to have right done them; to sue in a
certain court; to implead a certain person; to have a restitution of land which
they had recovered at law. From the sale of that justice which every citizen
has a right to demand, it was an easy transition to withhold or deny it. Fines
were received for the king's help against the adverse suitor; that is, for the
perversion of justice, or for delay.  Sometimes they were paid by opposite
parties, and, of course, for opposite ends. These were called counter fines; but
the money was sometimes, or as Lord Lyttleton thinks, invariably, returned
to the unsuccessful suitor."-HALLAM'S Middle Ages, vol. ii. p. 316.
Abuses of Prerogative-Purrve? cmice.-"TlThe real prerogatives that might
formerly be exerted, were sometimes of so injurious a nature, that we can hardly
separate them  from  their abuse: a striking instance is that of purveyance,
which will at once illustrate the definition above given of a prerogative, the
limits within which it was to be exercised, and its tendency to transgress them.
This was a right of purchasing whatever was necessary for the king's household,
at a fair price, in preference to every competitor, and without the consent of the
owner. By the same prerogative, carriages and horses were impressed for the
king's journeys, and lodgings provided for his attendants. This was defended on
a pretext of necessity, or at least of great convenience to the sovereign, and was
both of high antiquity and universal practice throughout Europe. But the royal
purveyors had the utmost temptation, and doubtless no small store of precedents,
to stretch this power beyond its legal boundary, and not only to fix their own
price too low, but to seize what they wanted without any payment at all, or with
tallies, which were carried in vain to an empty exchequer.  This gave rise to a
number of petitions from the commons, upon which statutes were often framed;
but the evil was almost incurable in its nature, and never ceased till that prerogative was itself abolished. Purveyance, as I have already said, may serve to
distinguish the defects from the abuses of our Constitution. It was a reproach
to the law that men should be compelled to send their goods without their consent; it was a reproach to the administration that they were deprived of them
without payment.
"The right of purchasing men's goods for the use of the king was extended
by a sort of analogy to their labor.  Thus Edward II. announces to all
sheriffs that William  of Walsinghaln had a commission to collect'as many
painters as might suffice for our works in St. Stephen's chapel, Westminster,
to be at our wages as long as shall be necessary,' and to arrest and keep in
prison all who should refuse or be refractory; and enjoins them to lend their assistance.  Windsor Castle owes its massive magnificence to laborers impressed
from  every part of the kingdom.  There is even a commission from Edward
IV. to take as many workmen in gold as were wanting, and to employ them at
the king's cost upon the trappings of himself and his household."-HlaLLaa's
Middle Ages, vol. iii. p. 148.




CHAPTER III.
ENGLAND  UNDER THE YOKE.
NECESSITIES OF DESPOTISM-SUPPRESSION OF THE ANGLO-SAXON SYSTEM AND LANGUAGE-CONFISCATION-THE NEW FOREST AND FOREST LAWS-TYRANNY
OF THE KING OVER THE NOBLES-EXACT DEFINITION OF CONQUEST-REMNANTS AND TRADITIONS OF THE SAXON SYSTEM-CHARTERS-RUFUS-HENRY
I.-STEPHEN-MATILDA-HENRY II.-RICHARD II.-FIRST IMPEACHMENT BY
PARLIAMENT,
DESPOTIC power can only be sustained by acts of despotism. In
the idea of subjection to the will of a mere mortal, there is something so revolting to our nature that the bare conception rouses an
involuntary spirit of resistance. Despotism is war with human
nature; and the first necessity of despots is defence against the
instincts of mankind.  The necessities of their position force them
to crush out the spirit of resistance to their usurpation. It is
not enough to crush resistance. They must crush the spirit which
inspires resistance, or they cannot be secure. It is a combat a'Ioutrance.  The law of self-defence demands relentless war upon
their foe, and that foe is the nature God has breathed into the nostrils of mankind.  Hence it is that tyrants, naturally amiable and
humane, have not unfrequently become the scourges of their race.
Compelled at first to use brute force against their open enemies,
and then to wage a ceaseless warfare with their hidden foe, in the
heart of every man worthy of the name of freeman, habit has
at last brought them to be willingly what tyrants must be actually
-enemies of man.  Self-preservation, calling for continual intimidation, leads to an inveterate habit of trampling on all human
rights and obligations, till the tyrant learns that his true enemy is
human nature. Then his task is clear. The arm of power and the




162             ENGLAND UNDER THE YOKE,
allurements of temptation are his only instruments; and he becomes
the corrupter and destroyer of his race.
The English people felt the full force of these horrible necessities
during the first five Norman reigns.  Under the iron hand of William, almost every vestige of the Anglo-Saxon system disappeared.
The great mass of the freemen were disfranchised and made serfs.
The ealdormen and corls were attainted and exiled, and their
lands delivered to the Norman followers of the king. The AngloSaxon priests and prelates were degraded from their offices, and
Norman creatures of the king appointed in their stead.  The Saxon
language was proscribed, and the procedures of the courts required
to be in Norman French. The native people, ground down by
exactions and exasperated by the insults heaped upon them by their
foreign masters, were lashed into occasional revolt; and thus
furnished to the king pretexts for further confiscations, and excuses
for more violent oppressions. From the Domesday Book we learn
that of seven hundred tenants in capite, or immediate vassals of the
crown, not one was a Saxon; and though of the 60,215 knights' fees
in England, it is probable that some-perhaps many-were still
held by Saxons, we must recollect that they were now no longer
freeholders, but were compelled to surrender their own lands into
the hands of Norman barons, and to receive them back as vassals,
burdened with the usual imposts of the feudal tenure. As the
landless Saxon freemen were degraded into serfs, so were the free
proprietors of lands degraded into feudal vassals.
Thus the people felt the full weight of the conqueror's heel.
But the necessities of arbitrary power demand intimidation of its
subjects, and the conqueror proceeded to strike terror to the people's
hearts by acts of ruthless cruelty which, if not prompted by this
cause, could only be described as acts of fiendish wantonness.
Under the thin pretence that he was apprehensive of a Danish invasion, he caused the whole region from the Tyne to the Humber to
be laid waste. Thousands of the people died of want beside the
ruins of their wasted homes; and for nine years, thoughout the
desolated district there was not one village-scarcely one houseleft for human occupation. Fear of an invasion, flimsy as the reason
was, was yet some reason for this wholesale cruelty; but no excuse




ENGLAND UNDER THE YOKE.                 163
was even attempted for a similar destruction, both of life and property, caused in the making of the king's " New Forest." Thousands
of persons died of hunger, that the king's deer might be fed.
Thousands of homes were given to the torch, that in their ruins
the wild boar might make his lair. Thousands of acres were withdrawn from cultivation for the use and benefit of man, to furnish
pastures for the royal game. And if the starving Saxon churl presumed to kill a boar or deer, his punishment was the loss of his
eyes. This trampling on the common instincts of humanity was
not mere wantonness.  It was part of the policy of the conqueror,
and was intended to inspire his subjects with a terror of his power.
To overawe his Norman as well as his Saxon vassals, he kept up a
standing army of mercenary soldiers from the Continent, and their
support he furnished by the manifold exactions which the feudal
system gave the opportunity of making. The comparative smallness of the fiefs enabled him to put down that pernicious system of
marauding by the barons which prevailed upon the Continent. This
he did, not as an act of justice, but as a means of making his power
felt and respected. In his realm of England he endured no robber
but himself. Rightly, indeed, does Hallam say that " England had
passed under the yoke; " yet England bore no other yoke than that
which any free people must endure which yields its freedom to the
hand of foreign or domestic usurpation. The necessities of tyranny
are everywhere the same. It has the same position to maintain;
the same war with the inborn instincts of mankind to wage; the
same means of corruption and intimidation to apply; and the same
heartless recklessness in working out its aims.'
It was not long before the Normans, under William and his immediate successors, found out that the royal despotism was not a
despotism merely to the Saxons. With that they might have been
content; but they were not long in discovering that they themselves
were as much objects of oppression to their sovereign as the subjugated Saxons. The effect of this was to make common cause between
them and the Saxons as against the crown: and it is singular to
notice that the causes which eventually led to the deliverance both
from kingly tyranny were the few remnants of the ancient Saxon
institutions that had been permitted to remain. William did Lot




164             ENGLAND UNDER THE YOKE.
affect to have conquered -England, but to have conquered the crown of
England; the term conquest not being in feudal language understood in its modern sense, but signifying simply acquisition in any
way other than by inheritance; and as William claimed to have
acquired the crown, no t by inheritance, but by a real or pretended
grant from Edward the Confessor, and was thus the original acquirer
of it to his family, he was called the conqueror, i. e., the acquirer of
the crown of England. He did not consequently pretend to have
subjugated England by the sword, but by the sword to have won
his rightful crown from Harold. At his coronation he took the same
oaths as the Saxon kings had taken theretofore, and swore in the
same formula to support and defend the laws of the realm. It is
true that William, like more modern rulers, held official oaths but
lightly, and completely overturned the Anglo-Saxon constitutions.
Yet in some respects the former institutions still remained.  The
shire and burgh courts-now called courts of assize-and the hundred courts-now called the quarter sessions —continued to be held.
In these the ancient laws and customs of the kingdom were preserved; in many matters they retained that local sovereignty which
was their great characteristic before the Conquest; and in all of
them tradition still spoke of a time when laws and statutes were not
emanations from the arbitrary will of a despotic king, but were enacted by a free and independent council of the kingdom, to whose
laws the prince and people were alike amenable. Thus the idea
of constitutional government was preserved. When groaning under
the oppressions of the kings, the Norman barons, no less than the
Saxons, clamored for the laws of Edward the Confessor; and as the
necessities of the crown afforded opportunity, they called for and
obtained successive charters recognizing the ancient Saxon laws.
Such charters were, however, always looked upon as acts of royal
grace. No parliament or council ventured to assume the functions
of the Saxon witena-gemote; nor, till the time of Richard I. did
Parliament assert any authority beyond that of a council of advice.
In their subjection to the throne, their only hope lay in the partial
recollection of the ancient liberties of England, which was kept alive
by a few feeble remnants of the Anglo-Saxon polity.
For a hundred and fifty years after the Conquest, the history of




ENGLAND UNDER THE YOKE.                 165
England, so far as it relates to constitutional developments, may be
summed up in a few sentences.
WILLIAM RUFUS, the immediate successor of the Conqueror,
followed in the footsteps of his father, and extended his oppressions
to the church.  He seized upon the temporalities of vacant bishoprics and abbeys, and delayed appointments to them, that he might
continue to enjoy their revenues. In many instances he sold or
gave away the church lands to his favorites. When he purchased
the duchy of Normandy from his brother Robert for 10,000 marks,
this sum was raised by general extortions both from church and
laity, so rigorous that convents were compelled to melt their plate
in order to supply the amounts required of them.2
HENRY I., having usurped the crown in defiance of the right of
his brother Robert, duke of Normandy, endeavored to secure himself in his possession by concessions to his subjects. He immediately gave a charter which professed to do away with the abuses of
his predecessor's reign; and as an earnest of his purpose he degraded and imprisoned Ralph Flambard, bishop of Durham, who
had been the agent of his brother's tyranny.' He also reconciled the
Saxons to his government by marrying Matilda, daughter of Malcolm III. of Scotland, and niece to Edgar Atheling. Thus both
the Normans and the Saxons looked to better days under the rule
of Henry; but though by no means so unscrupulous a prince as
Rufus, he had hardly given his charter before he broke it by seizing on the temporalities of the see of Durham, which he held for
five years; and when he went on his invasion of Normandy, he
raised the means for his expedition by exactions not less ruinous
than those of Rufus.
STEPHEN, a usurper like his predecessor, sought, like him, to win
the barons to his cause by a pretended abolition of abuses.  He
gave a solemn charter in which he promised that church benefices
falling vacant should immediately be filled, and that the crown
should no more seize their temporalities; that the royal forests
should. be diminished; that certain obnoxious taxes levied for fictitious purposes should be abolished, and that the wholesome laws
of Edward the Confessor should be restored. To win the favor of
the barons, he allowed them privileges hitherto unknown. The




166             ENGLAND UNDER THE YOKE.
baronial strongholds became dens of highway robbers. New castles,
built at first for safety, were in turn applied to purposes of violence;
and England in the reign of Stephen was one scene of turbulence
and bloodshed. Charters and laws in such a reign were of but
little value. When Stephen thought his crown safe on his head, he
spurned the solemn obligations he had sworn before the altar to fulfil; and the historian tells us that not laws nor charters, but his
"power, was the sole measure of his conduct."  Such a monarch
could not be otherwise than hateful to his subjects of all classes;
and the anarchy which overspread the realm must have impressed
them with the absolute necessity of fixed laws founded, not in the
caprice or the necessities of vicious princes, but on the eternal principles of right. Hence, when MATILDA, the true heir to the succession came with her son Henry to assert her right, she found the
people of all classes ready to support her claims, and Stephen was
before long beaten and made prisoner. But England had by this
time learned that her prosperity depended, not upon the person of
their king, but on the equitable administration of just laws. When
the queen was in the pride of her triumph, it was firmly but respectfully demanded by the people that she should promise to govern them
by the laws of Edward. Their prayer was haughtily refused; and
the result was the desertion of her standard by the people, her defeat by Stephen's partisans, and, ere long, the restoration of a king
who, faithless as he was, at least was willing to confess his obligation to obey the fundamental constitutions of the kingdom over
which he ruled.
HENRY II. was a monarch of another stamp. Firm and determined, he applied himself to the correction of the multiform abuses
which had grown up in the previous reign. His first act was to dismiss the mercenaries who had been collected by his predecessor at
a ruinous expense to overawe the barons.  Then he demolished the
baronial castles which had been productive of such monstrous evils;
but required that every man throughout the country should be
armed and practised in the use of weapons suited to his rank in
life; thus aiming to establish peace within the country and security
against invasions from without. Still more to repress the violence
of the barons, he commissioned four justiciaries, whose duty was to




ENGLAND UNDER THE YOKE.                  167
travel through the country, holding courts in the king's name; and
being armed with full power to decide the causes brought before
them, they were able to curb the barons in their very strongholds.
Henry's disposition was unquestionably to do right; yet one
important act of this reign shows how loose were all ideas both of
parliaments and legislation. A law was made that if a feudal lord
contracted debts, his vassal's goods should not be seized to satisfy
the creditor; but that, until the debt were paid, the creditor
should be entitled to receive the rents paid by the vassal to his
lord. This equitable law was not' enacted by an English parliament, but was made at Verneuil, in a council of prelates and barons
of Normandy, Poictou, Anjou, Maine, Touraine, and Brittany; yet
it was readily accepted as a valid law in England-so completely
had the royal power at this time overshadowed, and indeed extinguished the remembrance of the national legislature.
In the next reign, favorable circumstances tended to the reestablishment of the authority of Parliament. During the protracted
absence of King Richard in the Crusades, William  Longehamp,
who had been left joint regent and judiciary with the bishop of Durham, wielded his power with so high a hand, that Parliament, on its
own responsibility, removed him from his office. There is reason
to believe that Richard was not displeased with this act of his barons,
but, at all events, the act stood; and for the first time since the
days of Saxon witena-gemotes, another voice than that of the sovereign was heard in the administration of the national affairs.  The
first blow had been struck at the unlimited autocracy established by
the Norman conqueror in England. The first step toward the
building up of a free government with a well-balanced constitution
had been taken. Centuries of conflict still had to be passed through
ere the work could be accomplished; but in this act of the barons
the great work had been begun. The Parliament of England was
by this act reestablished; and before that generation passed away,
the abject baseness and the treacherous tyranny of John inspired
the will, afforded the occasion, and called forth the power to set
the liberties of England on a permanent foundation.4




168                ENGLAND UNDER THE YOKE.
NOTES.
1. Character of the Reign of the Conqueror.-" The commencement of his
(William the Conqueror's) administration was tolerably equitable. Though many
confiscations took place in order to gratify the Norman army, yet the mass of
the property was left in the hands of its former possessors. Offices of high trust
were bestowed upon Englishmen, even upon those whose family renown might
have raised the most aspiring thoughts. But partly through the insolence and injustice of William's Norman vassals, partly through the suspiciousness natural to
a man conscious of having overturned the national government, his yoke soon be.
came more heavy. The English were oppressed; they rebelled, were subdued,
and oppressed again. All their risings were without concert and desperate;
they wanted men fit to head them, and fortresses to sustain their revolt. After
a very few years they sank in despair, and yielded for a century to the indignities of a comparatively small body of strangers without a single tumult. So possible is it for a nation to be kept in permanent servitude, even without losing
its reputation for individual courage, or its desire of freedom."-HALLAM'S Jiiddle Ages, vol. ii. p. 301.
" England passed under the yoke; she endured the annoyance of foreign conquerors; her children, even though their loss in revenue may have been exaggerated, and still it was enormous, became a lower race, not called to the councils of their sovereign, not sharing his trust or his bounty. They were in a far
different condition from the provincial Romans after the conquest of Gaul, even
if, which is hardly possible to determine, their actual deprivation of lands should
have been less extensive; for, not only they did not for several reigns occupy
the honorable stations which sometimes fell to the lot of the Roman subject of
Clovis or Alaric, but they had a great deal more freedom and importance to
lose. Nor had they a protecting church to mitigate barbarous superiority.
Their bishops were degraded and in exile; the footstep of the invader was at
their altars; their monasteries were plundered and the native monks insulted.
Rome herself looked with little favor on a church which had preserved some
measure of independence. Strange contrast to the triumphant episcopate of the
Merovingian kings  " —Ibid. vol ii. p. 308.
"The tyranny of William displayed less of passion or insolence than of that
indifference about human suffering which distinguishes a cold and far-sighted
statesman. Impressed by the frequent risings of the English at the commencement of his reign, and by the recollection, as one historian observes, that the
mild government of Canute had only ended in the expulsion of the Danish line,
he formed the scheme of riveting such fetters upon the conquered nation that
all resistance should become impracticable. Those who had obtained honorable
offices were successively deprived of them; even the bishops and abbots of




ENGLAND UNDER THE YOKE.                         169
English birth were deposed-a stretch of power very singular in that age. Morcar, one of the most illustrious English, suffered perpetual imprisonment.
Waltheoff, a man of equally conspicuous birth, lost his head upon a scaffold by
a very harsh if not iniquitous sentence. It was so rare in those times to inflict
judicially any capital punishment upon persons of such ranks that his death
seems to have produced more indignation and despair in England than any
single circumstance. The name of Englishman was turned into a reproach.
None of that race for a hundred years were raised to any dignity in the state or
church. Their language and the characters in which it was written were rejected
as barbarous; in all schools, if we trust in authority often quoted, children were
taught French, and the laws were administered in no other tongue. It is well
known that this use of French in all legal proceedings lasted till the reign of
Edward III."-Ibid. vol. ii. p. 302, 303.
The condition of England under the Conqueror may be readily conceived
from the account given with apparent impartiality by the Saxon chronicler:
"If any one wish to know what manner of man he was, or what worship he
had, or of how many lands he were the lord, we will describe him as we have
known him; for we looked on him, and some while lived in his herd. King
William was a very wise man and very rich, more worshipful and strong than any
his foregangers.  He was mild to good men who loved God; and stark beyond
all bounds to those who withsaid his will. Yet truly, in his time, men had
mickle suffering, and yet very many hardships. Castles he caused to be wrought
and poor men to be oppressed. He was so very stark. He took from his subjects many marks of gold, and many hundred pounds of silver; and that he took,
some by right, and some by mickle might, for very light need. He had fallen
into avarice, and greediness he loved withal. He let his lands to fine as dear as
he could; then came some other and bade more than the first had given, and
the king let it to him who bade more; then came a third and bade yet more;
and the king let it into the hands of the man who bade the most. Nor did he
reck how sinfully his reeves got money of poor men, or how many unlawful
things they did. For the more men talked of right law, the more they did
against the law. He also set many deer-friths; and he made laws therewith
that whosoever should slay hart or hind, him man should blind. As he forbade
the slaying of harts, so also did he of boars; so much he loved the high deer, as
if he had been their father. Ile also decreed about hares that they should go
free. His rich men moaned, and the poor men murmured; but he was so hard
that he reeked not the hatred of them all. For it was need they should follow
the king's will withal, if they wished to live, or to have lands, or goods, or his
favour. Alas, that any man should be so moody, and should so puff up himself,
and think himself above all other men! May Almighty God have mercy on his
soul and grant him forgiveness of his sins." —Saxon Chronicle.
Assuredly the Norman king had good need of the devout prayer of his Saxon
subject.
8




170                ENGLAND UNDER THE YOKE.
2. Rufus.-Rufus was as reckless in the use of arbitrary power, and as fond
of a rude joke, as some more modern rulers. Witness the following:
"For a while, the new monarch, William  Rufus, made himself popular by
pledging himself to rule with justice, and to relieve the native English from several irksome restraints; and by giving away or spending freely the accumulated
wealth which came into his possession. But his temper was too violent to let
him observe his promises. And when Lanfranc remonstrated with him, the
king was not ashamed to reply in words which amounted to a confession that
he neither had kept nor intended to keep them.'Who,' said he,'can perform all he promises?'
" Instead of removing restraints, he probably added to those imposed by his
father that severe one by which all families were compelled to extinguish their
lights and fires at the sound of the evening bell, which was thence called curfew,
that is, cover fire. As to the liberality of Rufus, it was but the extravagance of
a thoroughly selfish man. The money he wasted had cost him no labor, and he
therefore chose to set no bounds to his profusion; caring nothing for the burdens which he thereby forced an unprincipled minister to impose upon his subjects. It is related of him, that his chamberlain having bought him a new pair
of hose, William asked what they cost.'Three shillings,' was the reply; and
this was at that time the price of a quarter of wheat.'Away with them,' said
he;' a king should wear nothing so cheap; bring me a pair ten times as dear.'
The shrewd attendant brought him an inferior pair, but said he had with difficulty prevailed with the tradesman to part with them at the price named by the
king. On which William replied:'You have now served me well; those I will
have.'
"' Such silly pride and wilful prodigality, when extended to all the occasions of
expense to which a sovereign is necessarily subject, must as certainly consume
the revenues of a kingdom as they would on a smaller scale destroy any private
fortune. And a king, like any other spendthrift, will be too surely driven by his
folly from pride to meanness. Though too haughty to wear clothes of ordinary
goodness, William could lower himself to cheat a Jew. One of that unhappy
race complained to him with tears, that his son had been converted; and besought the king to command the youth to deny Christ, and return to the faith of
his fathers. William gave no answer, but at the same time showed no horror at
the request; so that the Jew was encouraged to offer his sovereign sixty marks
as a bribe for compliance. On this he sent for the young man, told him what
his father required, and bade him acknowledge himself a Jew again. The youth
expressed his hope that the king could not be in earnest.'Son of a dunghill,'
exclaimed William,' do you think I would joke with you?  Obey me instantly,
or, by the cross of Lucca, you shall lose your eyes.' Though thus threatened
by a tyrant, who was known to fear neither God nor man, and whose passionate
tone and fierce look seemed to declare that his threats would be executed the
next moment, the young man calmly replied that he must suffer whatever the
king should choose to inflict; but that he had hoped a Christian sovereign would




ENGLAND  UNDER THE YOKE.                         171
have protected such as embraced the Christian faith. Finding him thus firm,
William neither punished the convert, nor continued his threats, but, turning to
the father, demanded the promised sum. The Jew objected that his son was as
much a Christian as ever.'I did what I could,' said William;'and do you
think I will work without my reward? As I have been unsuccessful, give me
half.' The Jew was obliged to comply, and the king took his thirty marks."WALTER'S Hist. of England, vol. i. p. 288-290.
3. Charter of Henry I.-" Besides taking the usual coronation oath to maintain the laws and execute justice, Henry I. passed a charter which was calculated
to remedy many of the grievous oppressions which had been complained of
during the reigns of his father and brother.  He therefore promised that, at the
death of any bishop or abbot, he never would seize the revenues of the see or
abbey during the vacancy, but would leave the whole to be reaped by the successor; and that he would never let to farm any ecclesiastical benefice, nor
dispose of it for money. After this concession to the church, whose favor was
of so great importance, he proceeded to enumerate the civil grievances which
he purposed to redress. Hle promised that upon the death of any earl, baron, or
military tenant, his heir should be admitted to the possession of his estate, on
paying a just and lawful relief, without being exposed to such violent exactions
as had been usual during the late reigns; he remitted the wardship of minors,
and allowed guardians to be appointed, who should be answerable for the trust;
he promised not to dispose of any heiress in marriage, but by the advice of all
the barons; and if any baron intended to give his daughter, sister, niece, or
kinswoman in marriage, it should only be necessary for him to consult the king,
who promised to take no money for his consent, nor even to refuse permission,
unless the person to whom it was purposed to marry her should happen to be
his enemy. He granted his barons and military tenants the power of bequeathing by will their money or personal estates; and if they neglected to make a
will, he promised that their heirs should succeed to them; he renounced the right
of imposing moneyage, and of levying taxes at pleasure on the farms which the
barons retained in their own hands; he made some general professions of moderating Enes; he offered a pardon for all offences; and he remitted all debts due to the
crown; he required that the vassals of the barons should enjoy the same privileges which he granted to his own barons; and he promised a general confirmation and observance of the laws of King Edward. This is the substance of the
chief articles contained in that famous charter." —HUmE, i. 313.
4. Saxon Serfdom.-The most perfect picture of the condition of England
under the Norman princes I have yet found is in the " Ivanhoe " of Sir Walter
Scott. In language, costume, and all minor details, it is marked by the usual
accuracy of that great and learned writer:
"The human figures which completed this landscape were in number two,
partaking, in their dress and appearance, of that wild and rustic character which




172                 ENGLAND  UNDER THE YOKE.
belonged to the woodlands of the West Riding of Yorkshire at that early period.
The eldest of these men had a stern, savage, and wild aspect. His garment was
of the simplest form imaginable, being a close jacket with sleeves, composed of
the tanned skin of some animal, on which the hair had been originally left, but
which had been worn off in so many places, that it would have been difficult to
distinguish from the patches that remained, to what creature the fur had belonged. This primeval vestment reached from the throat to the knees, and served
at once all the usual purposes of body clothing; there was no wider opening at
the collar than was necessary to admit the passage of the head, from  which it
may be inferred that it was put on by slipping it over the head and shoulders,
in the manner of a modern shirt or ancient hauberk. Sandals, bound with
thongs made of boar's hide, protected the feet, and a roll of thin leather was
twined artificially around the legs, and ascending above the calf, left the knees
bare, like those of a Scottish Highlander. To make the jacket sit yet more close
to the body, it was gathered at the middle by a broad leathern belt, secured by a
brass buckle; to one side of which was attached a sort of scrip, and to the other
a ram's horn, accoutred with a mouthpiece, for the purpose of blowing. In the
same belt was stuck one of those long, broad, sharp-pointed, and two-edged
knives, with a buck's-horn handle, which were fabricated in the neighborhood,
and bore even at this early period the name of a Sheffield whittle. The man
had no covering upon his head, which was only defended by his own thick hair,
matted and twisted together, and scorched by the influence of the sun into a
rusty dark-red color, forming a contrast with the overgrown beard upon his
cheeks, which was rather of a yellow or amber hue.  One part of his dress only
remains, but it is too remarkable to be suppressed: it was a brass ring resembling
a dog's collar, but without any opening, and soldered fast round his neck, so
loose as to form no impediment to his breathing, yet so tight as to be incapable
of being removed, excepting by the use of the file. On this singular gorget was
engraved, in Saxon characters, an inscription of the following purport: " Gurth,
the son of Beowulph, is the born thrall of Cedric of Rotherwood." Beside the
swineherd, for such was Gurth's occupation, was seated, upon one of the fallen
Druidical monuments, a person about ten years younger in appearance, and
whose dress, though resembling his companion's in form, was of better materials,
and of a more fantastic appearance.  His jacket had been stained of a bright
purple hue, upon which there had been some attempt to paint grotesque ornaments in different colors.  To the jacket he added a short cloak, which scarcely
reached halfway down his thigh; it was of crimson cloth, though a good deal
soiled, lined with bright yellow; and as he could transfer it fiom one shoulder to
the other, or at his pleasure draw it all around him, its width, contrasted with its
want of longitude, formed a fantastic piece of drapery.  He had thin silver
bracelets upon his arms, and on his neck a collar of the same metal, bearing the
inscription: " Wamba the son of Witless, is the thrall of Cedric of Rotherwood."
This person had the same sort of sandals with his companion, but instead of the
roll of leather thong, his legs were cased in a sort of gaiters, of which one was




ENGLAND UNDER THE YOKE.                           173
red and the other yellow. He was provided also with a cap, having around it
more than one bell, about the size of those attached to hawks, which jingled as
he turned his head to one side or other; and as he seldom remained a minute in
the same posture, the sound might be considered as incessant. Around the
edge of this cap was a stiff bandeau of leather, cut at the top into open work,
resembling a coronet, while a prolonged bag arose from within it, and fell down
on one shoulder, like an old fashioned nightcap, or a jelly bag, or the head gear
of a modern hussar. It was to this part of the cap that the bells were attached;
which circumstance as well as the shape of his head-dress, and his own half-crazed
half-cunning expression of countenance, sufficiently pointed him out as belonging to the race of domestic clowns or jesters, maintained in the houses of the
wealthy, to keep away the tedium of those lingering hours which they were
obliged to spend within doors. He bore, like his companion, a scrip, attached
to his belt, but had neither horn nor knife, being probably considered as belong.
ing to a class whom it is considered dangerous to intrust with edge tools. In
place of these he was equipped with a sort of sword of lath, resembling that with
which Harlequin operates his wonders upon the modern stage.
"' The outward appearance of these two men formed scarce a stronger contrast
than their look and demeanor. That of the serf or bondsman was sad and
sullen; his aspect was bent on the ground with an appearance of deep dejection,
which might be almost construed into apathy, had not the fire which occasionally sparkled in his red eye, manifested that there slumbered, under the appearance of sullen despondency, a sense of oppression and a disposition to resistance.
The looks of Wamba, on the other hand, indicated, as usual with his class, a sort
of vacant curiosity, and fidgety impatience of any posture of repose, together
with the utmost self-satisfaction respecting his own situation, and the appearance
which he made. The dialogue whllich they maintained between them was carried on in Anglo-Saxon, which, as we said before, was universally spoken by the
inferior classes, excepting the Norman soldiers and the immediate personal dependants of the great feudal nobles.  But to give their conversation in the original
would convey but little information to the modern reader, for whose benefit we
beg to offer the following translation.
"' The curse of St. Withold upon these infernal porkers!' said the swineherd,
after blowing his horn obstreperously, to collect together the scattered herd of
swine, which, answering his call with notes equally melodious, made, however,
no haste to remove themselves from the luxurious banquet of beech mast and
acorns on which they had fattened, or to forsake the marshy banks of the rivulet,
where several of them, half plunged in mud, lay stretched at their ease, altogether
regardless of the voice of their keeper.' The curse of St. Withold upon them
and upon me!' said Gurth;'if the two-legged wolf snap not up some of them
ere nightfall, I am no true man. Here, Fangs! Fangs!' he ejaculated at the
top of his voice to a ragged, wolfish-looking dog, a sort of lurcher, half mastiff,
half greyhound, which went limping about as if with the purpose of seconding
his master in collecting the refractory grunters; but which, in fact, from misap



174                 ENGLAND UNDER THE YOKE.
prehension of the swineherd's signals, ignorance of his own duty, or malice
prepense, only drove them hither and thither, and increased the evil which he
seemed designed to remedy.'A devil draw the teeth of him,' said Gurth,'and the mother of mischief confound the ranger of the forest that cuts the
foreclaws off our dogs, and makes them unfit for their trade! Wamba, up and
help me, an thou beest a man; take a turn round the back o' the hill, to gain the
wind on them; and when thou'st got the weather gage, thou mayst drive them
befcre thee as gently as so many innocent lambs.'
"'Truly,' said Wamba, without stirring from the spot,'I have consulted
my legs upon this matter, and they are altogether of opinion, that to carry my
gay garments through these sloughs would be an act of unfriendship to my
sovereign person and royal wardrobe; wherefore Gurth I advise thee to call off
Fangs, and leave the herd to their destiny, which, whether they meet with bands
of travelling soldiers, or of outlaws, or of wandering pilgrims, can be little else
than to be converted into Normans before morning, to thy no small ease and
comfort.
"' I The swine turned Normans, to my comfort!' quoth Gurth,' expound that
to me, Wamba, for my brain is too dull and my mind too vexed to read
riddles.'
"'Why, how call you these grunting brutes running about on their four
legs?' demanded Wamba.
"'Swine, fool, swine,' said the herd,'every fool knows that.'
"'And swine is good Saxon,' said the jester;'but how call you the sow
when she is flayed, and drawn, and quartered, and hung up by the heels like a
traitor?'
"'Pork,' answered the swineherd.
"'I am very glad every fool knows that too,' said Wamba;'and pork I
think is good Norman-French; and so when the brute lives and is in the charge
of a Saxon slave, she goes by her Saxon name; but becomes a Norman, and is
called pork, when she is carried to the castle hall to feast among the nobles; what
dost thou think of this, friend Gurth, ha?'
"' It is but too true doctrine, friend Wamba, however it got into thy fool's
pate.'
"'Nay, I can tell you more,' said Wamba in the same tone;' there is old
Alderman Ox continues to hold his Saxon epithet while he is under the charge
of serfs and bondsmen such as thou, but becomes Beef, a fiery French gallant,
when he arrives before the worshipful jaws that are destined to consume him.
Mynheer Calf, too, becomes Monsieur de Veau in the like manner; he is Saxon
when he requires tendance, and takes a Norman name when he becomes matter
of enjoyment.'
"' By St. Dunstan,' said Gurth,'thou speakest but sad truths; little else is
left to us but the air we breathe, and that appears to have been reserved with
much hesitation, solely for the purpose of enabling us to endure the tasks they lay
upon our shoulders. The finest and the fattest is for their board; the loveliest is




ENGLAND UNDER THE YOKE.                        175
for their couch; the best and bravest supply their foreign masters with soldiers,
and whiten distant lands with their bones, leaving few here who have either will
or the power to protect the unfortunate Saxon.
"' Gurth,' said the jester,'I know thou thinkest me a fool, or thou wouldst
not be so rash in putting thy head into my mouth. One word to Reginald Front
de Bceuf, or Philip de Malvoisin, that thou hast spoken treason against the Norman, and thou art but a castaway swineherd; thou wouldst waver on one of
these trees as a terror to all evil speakers against dignities.'
"'Dog, thou wouldst not betray me,' said Gurth,'after having led me on
to speak so much at disadvantage?'
"'Betray thee!' answered the jester;'no, that were the trick of a wise
man; a fool cannot half so well help himself,' &c., &c. —IvanAoe.




CHLAPTER IV.
THE GIVING OF MAGNA CHARTA.
STATE OF THE KINGDOM AT THE ACCESSION OF JOHN-EARLY ACTS OF HIS REIGN
— MURDER OF PRINCE ARTHUR-REFUSAL OF THE BARONS TO FOLLOW JOHN
INTO FRANCE-HIS SEIZURE OF THE TEMPORALITIES OF CANTERBURY-APPOINTMENT OF LANGTON TO THE ARCHBISHOPRIC-ENGLAND UNDER INTER.
DICT-THE KINGDOM GIVEN BY THIE POPE TO PHIILIP OF FRANCE-THE INTERDICT REMOVED-JOHN'S OATH BEFORE RECEIVING ABSOLUTION-DISCOVERY
OF TIIE CHARTER OF HENRY I. BY LANGTON-THE BARONS SWEAR TO
MAINTAIN IT, AND DEMAND THAT JOHN SHALL RATIFY IT-THEY RAISE AN
ARMY —LONDON DECLARES FOR THE BARONS —THE MEETING AT RUNNYMEDE
-THE CHARTER GRANTED-ITS CHARACTER AND PROVISIONS-RECOGNITION
OF THE RIGHT OF REBELLION-HUME AND HALLAM ON THE CHARTER.
AT the accession of King John the power of Parliament as a
legislative body was distinctly recognized, but it is doubtful whether any clear idea of the vast importance of the privilege of parliamentary legislation had been formed. During the various disturbances which had ensued upon the seizure of the crown by princes
who had no legitimate title to it, the barons had been taught their
power in the disposition of a vacant throne. Their power to check a
crowned king they had not yet learned. Again, the insecurity of
these usurping princes had from time to time induced them to give
charters promising to rule their people by the good laws of the Saxon
kings.  But of the purport of these laws the people were profoundly ignorant. Contrasted with the violence of Norman rule, the days
of equitable Saxon government were remembered in the popular
traditions as the golden age, and these charters of the kings were
gratifying to a general desire, however vague, for fixed and fundamental laws.  But they were never clearly understood.  The Norman barons knew, as yet, no government but that of feudalism; the




THE GIVING OF MAGNA CHARTA.                 177
Saxon people had been crushed till they had lost the recoliection of their ancient liberties; and neither had yet learned their
power to force a sovereign to respect his subjects' rights.  Hence
the successive charters were neglected equally by prince and people, and soon passed into oblivion. In the reign of John, only one
copy of the charter given by Henry I. was to be found in the
whole kingdom, though a copy had been sent to every shire and
diocese throughout the land! It needed such a reign as that of John
to rouse the people to activity. Had he possessed the strong will, the
sagacious forecast, and the iron nerve of the Conqueror, the history
of England might have been like that of France; but his unequalled course of murder, meanness, falsehood, perjury, licentiousness,
extortion, and oppression roused both lords and commons to a
sense of the necessity of a fixed constitution which should bind
both prince and people; his pusillanimous weakness was a tower of
strength to the great confederacy which was formed to vindicate their
liberties; and the sound wisdom and discretion of the patriot archbishop, Stephen Lantgton, guided them in their endeavors, till the
fundamental law of England, which has never to this day been
changed but by the development of its inestimable principles, was
laid down in the instrument called MAGNA CIIARTA.
The early acts of John's reign were but- little likely to inspire
the people with respect for royalty.  Hie was not the true heir to
the throne; for though his elder brother Geoffrey was dead, Arthur the son of Geoffrey still lived, and was, in right, the king of
England. Not content, however, with supplanting Arthur, John,
having defeated his adherents and gained possession of his person,
murdered him in prison. This foul assassination of a child whose
early qualities gave promise of a noble manhood, inspired the barons with resentment and disgust.  Philip of France, availing himself of the occasion furnished by the crime of John and the alienation of his subjects, marched upon, and took possession of the Norman duchy; and when John suinmroned the English barons to
accompany his standard in an expedition for the recovery of his
lost province, they indignantly refused to follow him.  Thenceforward he applied himself to the oppression of his English subjects.
The limits of our space forbid us to relate the story of his tyranny.
8



178            THE GIVING OF MAGNA CHARTA.
Unlimited licentiousness, rapacity, and prodigality, and a succession of arbitrary fines, imprisonments, and taxes, are the chief points
of the tale. At length his insolent extortion brought him into
conflict with the only power which could effectually cope with him,
-the church.  The see of Canterbury falling vacant, he seized
upon its lands and revenues, expelled the monks of Christ Church,
who, according to their ancient custom, were about to elect a prelate
to the vacant see, and of his own power named a new archbishop.
Innocent III., the reigning Pope, was little likely to submit to this
invasion of the church's rights. He instantly annulled the appointment of the king, required him to give up the church lands,
with the revenues he had appropriated, and appointed Stephen
Langton to the archiepiscopal throne. John's reply to the Pope's
requisitions was another seizure of church lands; and Innocent
laid England under interdict.  For nearly  seven years England groaned beneath that fearful sentence. Public worship was
suspended, and the people lived and died without the offices of their
religion, and, so far as priestly ministrations were concerned, without
God in the world. Had John possessed the affections of his people, he might have defied the Pope, declared the independence of
the English Church, and so anticipated, partially at least, the
events of a much later period. But his arbitrary conduct had
arrayed all classes of his subjects in hostility against him.  Laity
and clergy, lords and commons hated and despised him; and when
Innocent, proceeding to extremities, declared his people released
from their allegiance, and appointed Philip II., king of France, to
the throne of England, so few of the barons seemed disposed to
stand by him, that, as we learn from Matthew Paris, the historian
of his reign, he actually sent for succor to Murmelius, the Moslem
king of Spain and Africa, offering, in return for his assistance, to
apostatize to Islamism, and hold his kingdom  as avassal of the
Moorish king.  But Philip gave him short space to make such
alliances; and John submitted to the Pope on terms which showed
how utterly he was humiliated. He submitted to the censures of the
church, resigned his crown to the Pope's legate, and received it
back again as the Pope's gift, to be held as the Pope's vassal. On
these conditions Innocent consented to require the French king to




THE GIVING OF MAGNA CHARTA.                179
abstain from his invasion of the realm of England. The interdict
was raised, and John was solemnly absolved at Winchester by
the primate Langton, in June, 1214. But before the primate
gave him absolution, he required the king to swear "that he
would diligently defend the ordinances of Holy Church, and that his
hand should be against all her enemies; that the good laws of his
ancestors, and especially those of KIing Edward the Confessor, whose
restoration had been promised by the charter of ]Henry I., should be
recalled, and evil ones destroyed; and that his subjects should receive
jutstice, according to the upright decrees of his courts." John also swore
"that all corporations and private persons whom the interdict had
damaged should receive a full restitution of all which had been
taken away, before the time of the approaching Easter, if his sentence of excommunication were first removed. He swore, moreover,
fidelity and obedience to Pope Innocent and his catholic successors,
and that he would give them that superiority which was already
contained in writing."
John held his oaths but lightly, and months passed away without redress of grievances, without the abolition of oppressive laws
and customs, and without that restoration of the ancient constitutions which had been promised by the charter of King Henry,
and confirmed by John's oath.
It is probable that John was not aware of the importance of
that charter.  Certainly the barons were in utter ignorance of its
provisions. But the patriotic Langton was as learned as he was
heroic and discreet.  Calling the barons to him, he informed them
that he had a copy of the charter of King Henry, read it to them
article by article, and, as he did so, showed them its immense
importance, and the ease with which it might be applied to
their existing circumstances.' Overjoyed at this discovery, and
filled with hope, the barons joined in a confederacy, with the primate
at their head, to force John to make good the oaths which he had
taken; and the hands of the confederates were strengthened on the
very threshold of their enterprise by an outbreak of the king's
unbridled lechery.3 Assemblillg at the abbey of St. Edmund, in
Edmundsbury, on the 20th of November (St. Edmund's day), they
swore before the high altar to stand by each other, and make war




180           THE GIVING OF MAGNA CIMARTA.
upon the king till he should by a solemn charter ratify their liberties, with provisions under which they might themselves be able to
compel him to respect them. On Epiphany they came to him with
such a military force as challenged his respect,and solemnly demanded that he would make good his oaths.  John asked till Easter to
consider their demands, in hopes that through the papal influence
he might be able to dissolve the confederacy.  The time was
granted, but John's hopes were disappointed. In the week succeeding Easter the confederates assembled at the town of Stamford
with two thousand knights and their retainers.  Thence they
marched to Brackly on the 27th of April. John held the town of
Oxford, fifteen miles from Brackly, and despatched the archbishop
with the earl of Pembroke to the camp of the confederates.
When they returned, they brought an abstract of the articles demanded by the barons, which was subsequently made the basis of the
charter, and announced their purpose to make war upon the king
till he should grant what they desired. " And why," said the excited monarch with a scornful sneer, "And why demand they not
my kingdom likewise? By God's teeth, I will never grant them
liberties that will make myself a slave." It was not long before he
found it necessary to break this oath like the rest. London declared
for the confederates, and it is said that London even then could
muster 80,000 men-at-arms.  The barons took possession of the
capital on the 22d of May, and issued writs of summons to all the
nobles who had not yet joined them. The effect was magical; and
in a few days John was left at Oldham with but seven attendants,
some even of whom, though they had not deserted him, were cordially in sympathy with the confederates. The king had no choice
left but to comply with the demands of his revolted barons; and,
after a few unimportant preliminaries, met them on the plain of Runnymede, beside the Thames, where they encamped apart, like enemies, from June 15th till June 19th, when the negotiations were
completed. The articles embodied in the first demand of the confederates were, with some verbal alterations, made into a royal
grant; and MAGNA CHARTA, the GREAT CHARTER of the Liberties of England, signed and sealed by the king's hand, was sol.
emnly declared, with grave formalities, to be, what it has ever since




THE GIVING OF MAGNA CHARTA.                 181
remained —the fundamental law of England. This time at least
the people understood the meaning of the royal charter.  The tyrannies of John had fortunately been so flagrant, so distinct, so
universal among all classes of his subjects, that a bare recital of
his acts, coupled with a prohibition of the like in time to come, was
a complete protection to the people for the future.  In the charter
we find not one abstraction, theory, or maxim  of government, but
a distinct and sharp enumeration of things which the king shall and
which he shall not do, that shows clearly both the wrongs he had
committed and the rights he had denied.4  It is for this reason,
doubtless that the charter has proved to be so good and fruitful.
For having ever afterward been regarded as the root and ground of
the whole English Constitution, the judges have from  time to time
applied to it for precedent as cases of a novel character arose; and
in its multifarious clauses they have seldom failed to find one which
contained a principle applicable to the cause in hand.  To this directness, therefore, of the charter we must trace much of the equity
and reason of the common law. A charter, however good, expressing
abstract theories and maxims of laws or government, must inevitably have led to inextricable confusions: some judges straining the
law to the utmost, and others restraining it to the least it could
mean. But given as it was in direct application to existing facts, it
became a chapter of judicial precedents from which there could be no
escape, and being gradually developed in the course of ages only as
new circumstances called for some new application of the principles
of equity on which it was established, centuries have vindicated its
claim to be known as the Great Charter of the Liberties of England.
As it is our purpose to give a translation of this venerable
monument of freedom, with such copious notes as will make it perfectly intelligible to the ordinary reader, we shall not here enter
largely into the provisions of the charter, but content ourselves
with an enumeration of its chief heads. (It granted, then, the freedom of the English church forever~ it mitigated the chief burdens
of the feudal system, by hecreasing the king's power over his immediate tenants or tenants mn capite, and by extending these provisions
to sub-feudatories; it did away, particularly, with the abuses of the
feudal right of wardship and marriage, which had so oppressed the




182            THE GIVING OF MAGNA CHARTA.
helpless; it defined and limited the aids which might be lawfully
assessed by lords upon their vassals, and provided that in ease of
any further taxation, a parliament must be summoned to grant and assess
it; it protected trade and commerce by a guarantee of safety to foreign merchants, and a recognition of the ancient rights, liberties,
and free customs of all boroughs, towns, and cities; it provided for
more regular administration of the laws by promising that the king's
courts should henceforth be held at a fixed place, instead of following
the royal person, thus at the same time removing judges from unwholesome influences; it declared that justice should neither be denied,
sold, nor delayed to any man; that " NO FREEMAN SHOULD
BE TAKEN, OR IMPRISONED, OR DISPOSSESSED, OR
OUTLAWED, OR BANISHED, OR IN ANY WAY DESTROYED, BUT BY THE LAWFUL JUDGMENT OF HIS
PEERS OR BY THE LAW OF THE LAND;" and that a
writ of inquisition, equivalent in its effect to a writ of HABEAS
CORPUS, SHOULD BE INSTANTLY AND GRATUITOUSLY GRANTED TO ACCUSED PERSONS WHO DESIRED
A SPEEDY TRIAL; it provided that unlawful fines which had
been levied by the king and his immediate predecessors should be
remitted or repaid, that the new forests should be disforested, that
is, restored to cultivation, and that the king's foreign mercenaries
should be banished. It concluded with a general amnesty to all
who had taken part agai t the king in the discord between him
and his barons, and with a O LEMN RECOGNITION OF THE
RIGHT OF REBELLION  If the king should violate the charter.
Five and twenty barons were appointed to compel him to fidelity.
In case he injured any man, complaint was to be made to any four
out of the twenty-five, who were to make a solemn application for redress, and if redress were not given them, the five and twenty barons
were to make war on the king, to harass and distress him in every
way possible, by taking his castles, lands, and possessions, saving
harmless only the persons of the royal family, till the wrong should
be redressed according to their verdict, after which they were to return
to their allegiance as before.  In security of these things John delivered to the barons the custody of London, and to Langton the
Tower of London, to be held till his concessions should have been




THE GIVING OF MAGNA CHARTA.               183
fulfilled. Never was humiliation more complete; never was victory
more perfect; but the victory was that of freedom over despotism,
and the humiliation was that of a tyrant before freemen whose
rights he had contemned, whose firesides he had sought to violate,
and over whom he had attempted to usurp unlimited and irresponsible authority.'
~Thus, by a great rebellion of the barons, England's worst and
weakest monarch was compelled to grant a charter which declared
rebellion lawful, and provided means for lawfully conducting it.
No great step in the onward march of constitutional government
has ever yet been made but by such righteous rebels as the barons
of King John; and while it is a truth that an unjustifiable rebellion is a heinous crime, it is no less true that without rebellion constitutional freedom never could have been achieved in any country.
Magna Charta, the Petition of Right, the Bill of Rights, the Constitution of these States, were all successively the offspring of
rebellion; and if these States now abandon their free system to
the hand of arbitrary power, the only hope for their posterity will
be that they may follow the example of rebellion set them by our
English and colonial ancestors.
The provisions of the charter of King John involve, as Hume
says, "all the chief outlines of a legal government, and provide
for the equal distribution of justice and the free enjoyment of
property; the great objects for which the people have a perpetual and
inalienable raght to rebel; and which no time, nor precedent, nor
statute, nor positive institution ought to deter them from keeping
ever uppermost in their thoughts." Neither Humne nor the heroes of
Runnymede appear to have been very firm believers in the doctrine
of " unconditional loyalty." That article in the provisions of a constitutional government it was reserved for an American Republican
to invent, in the year of grace-we had almost said disgrace-1863.
We cannot better end the present chapter than with the following quotation from lHallam:
"In the reign of John, all the rapacious exactions usual to
these Norman kings were not only redoubled, but mingled with
other outrages of tyranny still more intolerable. These too were
to be endured at the hands of a prince utterly contemptible for his




184            THE GIVING OF MAGNA CHARTA.
folly and cowardice.  One is surprised at the forbearance displayed
by the barons, till they took up arms at length in that confederacy
which ended in establishing the great charter of liberties. As this
was the first effort toward a legal government, so is it beyond comparison the most important event in our history, except that Revolution, without which its benefits would have been rapidly annihilated.
The Constitution of England has indeed no single date from which
its duration is to be reckoned.  The institutions of positive law,
the far more important changes which time has wrought in the
order of society, during six hundred years subsequent to the great
charter, have undoubtedly lessened its direct application to our
present circumstances. But it is still the keystone of English
liberty. All that has since been obtained is little more than a confirmation or commentary; and if every subsequent law were to be
swept away, there would still remain the bold features that distinguish a free from a despotic monarchy. It has been lately the
fashion to depreciate the value of the Magna Charta, as if it had
sprung from the private ambition of a few selfish barons, and
redressed only some feudal abuses. It is indeed of little importance
by what motives those who obtained it were guided. The real
characters of men most distinguished in the transactions of that
time are not easily determined at present.  Yet if we bring these
ungrateful suspicions to the test, they prove destitute of all reasonable foundation.  An equal distribution of civil rights to all classes
of freemen forms the peculiar beauty of the charter. In this just
solicitude for the people, and in the moderation which infringed
upon no essential prerogative of the monarchy, we may perceive a
liberality and patriotism very unlike the selfishness which is sometimes rashly imputed to those ancient barons. And so far as we are
guided by historical testimony, two great men, the pillars of our
church and state, may be considered as entitled beyond the rest to
the glory of this monument: Stephen Langton, archbishop of
Canterbury, and William, earl of Pembroke. To their temperate
zeal for a legal government, England was indebted during that
critical period for the two greatest blessings that patriotic statesmen
could confer: the establishment of civil liberty upon an immovable
basis, and the preservation of national independence under the




THE GIVING OF MAGNA CHARTA.                     185
ancient line of sovereigns, which rasher men were about to exchange
for the dominion of France.
" But the essential clauses of Magna Charta are those which
protect the personal liberty and property of all freemen, by giving
security from arbitrary imprisonment and arbitrary spoliation.' No freeman' (says the 29th chapter of Henry IIl.'s charter, which,
as the existing law, I quote in preference to that of John, the variations not being very material)' shall be taken or imprisoned, or be
disseized of his freehold, or liberties, or free customs, or be outlawed
or exiled, or any otherwise destroyed; nor will we pass upon him,
nor send upon him, but by lawful judgment of his peers, or by the
law of the land.  We will sell to no man, we will not deny or delay
to any man justice or right.' It is obvious that these words, interpreted by any honest court of law, convey an ample security for the
two main rights of civil society.  From  the era therefore of King
John's charter, it must have been a clear principle of our Constitution,
that no man can be detained in prison without trial.  Whether courts
of justice framed the writ of habeas corpus in conformity to the
spirit of this clause, or found it already in their register, it became
from that era the right of every subject to demand it.  That writ,
rendered more actively remedial by the statute of Charles II., but
founded upon the broad basis of Magna Charta, is the principal bulwark of English liberty; and if ever temporary circumstances, or the
doubtfulplea of political necessity, shall lead men to look on its denial
with apathy, the most distinguishing characteristic of our Constitution
will be effaced."-HALLAM'S Middle Ages, vol. ii. p. 322 et seq.
NOTES.
1. The Former Charters.-" A charter of Henry I., the authenticity of which
is undisputed, though it contains nothing specially expressed but a remission of
unreasonable reliefs, wardships, and other feudal burdens, proceeds to declare
that he gives his subjects the laws of Edward the Confessor, with the emendations made by his father with consent of his barons. The charter of Stephen
not only confirms that of his predecessor, but adds, in fuller terms than Henry
had used, an express concession of the laws and customs of Edward. Henry II.




186              THE GIVING OF MAGNA CHARTA.
is silent about these, although he repeats the confirmation of his grandfather's
charter. The people, however, had begun to look back to a more ancient stand,
ard of law. The Norman conquest, and all that ensued upon it, had endeared
the memory of their Saxon government. Its disorders were forgotten, or rather
were less odious to a rude nation than the coercive justice by which they were
afterward restrained. Hence it became the favorite cry to demand the laws of
Edward the Confessor; and the Normans themselves, as they grew dissatisfied
with the royal administration, fell into these English sentiments. But what
these laws were, or, more properly perhaps, these customs subsisting in the Confessor's age, was not very distinctly understood."-HALLAM's  Middle Ages, vol.
ii., p. 320.
2. _Lanyton's Discovery of the Charter of Henry I. to the Barons.-" The
barons, finding that John was only temporizing with them, convened a general
assembly of the peers and ecclesiastics at St. Paul's, when Langton, the archbishop, stood up and addressed the convocation in these terms:' Ye have heard,
when at Winchester, before the king was absolved, I compelled him to swear
that the existing evil statutes should be destroyed, and that more salutary laws,
namely, those of King Edward the Confessor, should be observed by the whole
kingdom. In support of these things are ye now convened; and I here disclose
to you a newly discovered charter of King Henry I. of England, the which if ye
are willing to support, your long-lost liberties may be restored in all their
original purity of character.' The prelate then proceeded to read the charter
with a loud voice, which so animated the minds of all present, that with the
greatest sincerity and joy they swore, in the archbishop's presence, that at a
proper season their deeds should avouch what they had then declared, and that
even to death itself they would defend those liberties. Langton, on the other
hand, promised his most faithful assistance in the execution of their arduous undertaking, and at the same time assured them that the covenant then made
would reflect honor on their names through successive generations. This, then,
was the conclusion of the first meeting for securing the king's consent to the
Magna Charta; from the decisions of which none of that assembly for a moment withdrew their support until the object which they had so long sought was
obtained, and the liberties which preceding kings refused to grant were entirely
and wholly theirs."-THoMnsoN's Mfagna Charta, p. 12, 13.
3. Case of De Vesci. —" Henry Knighton, a canon-regular of Leicester abbey,
who lived in the time of Richard II., relates an improbable circumstance (to
others the affair appears extremely probable) particularly connected with this
baron-De Vesci-wherein he affirms that the incontinence of John was the
real cause of the general insurrection of the peerage against him, charging him
with vitiating their wives, and then deriding them. He adds, too, that Eustace
de Vesci, having married a very beautiful woman-Margaret, daughter of William, king of Scotland-whom he kept far distant from the court, John became




THE GVITNG  OF 1MAGNA CHARTA.                      187
enamored of her, and carefully considered how he -might possess her. Sitting
one day at table with the baron, King John, observing a ring he wore, took it
from him, and said that he had a similar stone, which he would have set in gold
of the same pattern; and having thus procured it, he immediately sent it in De
Vesci's name to his wife, charging her by that token instantly to come to him, if
she ever expected to see him alive. Believing this message, she speedily departed to the court, but on her arrival there, she met her husband, who happened to be riding out; and an explanation having taken place, a disguised
courtesan was sent to the king as her substitute.  Upon John's discovery of this
deceit, he was so enraged that De Vesci fled into the north, destroying some of
the king's houses in his passage; whilst many of the nobles who had experienced
the same treatment, going with him, they seized upon the king's castles, and at
length were joined by the citizens of London. As this baron was so inveterate
an enemy to King John, it is not surprising to find him a principal leader in the
insurrection that followed." -THomPso.N's Magna Charta, p. 291.
4. Simplicity of the. Charter.-It is observable that the language of the
great charter is simple, brief, general without being abstract, and expressed in
terms of authority, not of argument; yet commonly so reasonable as to carry
with it the intrinsic evidence of its own fitness. It was understood by the simplest of the unlettered age for whom it was intended. It was remembered by
them; and though they did not perceive the extensive consequences which
might be derived from it, their feelings were, however, unconsciously exalted
by its generality and grandeur.
It was a peculiar advantage that the consequences of its principles were, if
we may so speak, only discovered gradually and slowly. It gave out on each
occasion only as much of the spirit of liberty and reformation as the circumstances of succeeding generations required, and as their character would safely bear.
For almost five centuries it was appealed to as the decisive authority on behalf
of the people, though commonly so far only as the necessities of each case demanded. Its effect in these contests was not altogether unlike the grand process by which nature employs snows and frosts to cover her delicate germs, and
to hinder them from rising above the earth till the atmosphere has acquired the
mild and equal temperature which insures them against blights.  On the English nation, undoubtedly, the charter has contributed to bestow the union of
establishment with improvement. (To all mankind it set the first example of
the progress of a great nation for enturies, in blending their tumultuary democracy and haughty nobility with a fluctuating and vaguely limited monarchy, so
as at length to form, from these discordant materials, the only form of free
government which experience had shown to be reconcilable with widely extended dominions. j Whoever, in any future age, or unborn nation, may admire the
felicity of the expedient which converted the power of taxation into the shield
of liberty, by which discretionary and secret imprisonment was rendered impracticable, and portions of the people were trained to exercise a larger share




188              THE GIVING OF MAGNA CHARTA.
of judicial power than was ever allotted to them in any other civilized state, in
such a manner as to secure instead of endangering public tranquillity;-whoever
exults at the spectacle of enlightened and independent assemblies, who, under
the eye of a well-informed nation, discuss and determine the laws and policy 
likely to make communities great and happy;-whoever is capable of comprehending all the effects of such institutions, with all their possible improvements
upon the mind and genius of a people, is surely bound to speak with reverential gratitude of the authors of the great charter. To have produced it, to have
preserved it, to have matured it, constitute the immortal claim of England on
the esteem of mankind.  Her Bacons and Shakspeares, her Miltons and Newtons, with all the truth which they have revealed, and all the generous virtue
which they have inspired, are of inferior value, when compared with the subjection of men and their rulers to the principles of justice; if, indeed, it be not
more true that these mighty spirits could not have been formed, except under
equal laws, nor roused to full activity without the influence of that spirit which
the great charter breathed over their forefathers.-MAcKINTosn's England, i.
219-222.
5. Effect of the giving of the Charter on King John.-A celebrated English
historian speaks in the following terms concerning the manner in which the late
grant of Magna Charta preyed upon the health and the disposition of John:'Great reioising," says Holinshed, "was made for this conclusion  of peace
betwixt the king and his barons, the people iudging that God had touched the
king's heart, and mollified it, whereby happie daies were come for the realm of
England, as though it had beene delivered out of the bondage of iEgypt; but
were much deceived, for the king having condescended to make such grant of
liberties, farre contrarie to his mind, was right sorrowful in his heart, cursed his
mother that bare him, the houre that he was borne, and the paps that gave him
sucke, wishing that he had received death by violence of sword or knife, in steed
of naturall norishment: he whetted his teeth, he did bite now on one staffe,
and now on an other, as he walked, and oft brake the same in pieces when he
had done, and with such disordered behauior and furious gestures he uttered his
greefe in such sort that the noblemen verie well perceiued the inclination of his
inward affection concerning these things, before the breaking up of the councell,
and therefore sore lamented the state of the realme, gessing what would become
of his impatiencie and displeasant taking of the matter."
If this melancholy description was a real picture of John's mind after the
conclusion of Magna Charta, he was indeed reduced to a miserable state; and
this in a twofold sense, for he was not only bent under the weight of his present
evils, but his peers, perceiving how much his extorted concession oppressed his
thoughts, and fearful of his swerving from it, were prepared to resort to the same
violent methods for its preservation as those which they had already made use of
to gain it. The future actions of John's life were then smouldering in his breast,
like the sleeping, yet unsubdued fires of a volcano: his intentions were how



THE GIVING  OF MAGNA CHARTA.                       189
ever already suspected by many of his peers, and while the king was secretly
providing for the success of his plans, they were not less anxious for the security
of theirs. Hence arose a mutual mistrust, which the sealed deed of Magna Charta
could by no means dissipate; but it was regarded, by one party at least, as only
a temporizing expedient, to put an end to the civil feuds which were spread over
all the kingdom. In the midst of the schemes which John had commenced to
render void that engagement, which he could never remember but with agony,
he died suddenly at Newark, on the 19th of October, 1215, by poison, as it is
related by some writers, or through the infirmities induced by a broken heart
and constitution, as it is asserted by others. There are but few, however, at the
present time, who give any degree of credence to the former relation; yet whoever attentively considers the utter hatred which was entertained for John by
almost all his subjects, and more especially by the ecclesiastics, will perceive but
little reason why this account should be supposed wholly traditional. The celebrated Rapin, and his annotator Morant, have thought it a sufficient argument
against its truth to remark that it was improbable for "a man to poison himself
to be revenged of another; " but as the mistaken friar believed he was acting in
the most patriotic and virtuous manner, in rescuing England from a tyrannic
power, so he gave himself without scruple as a martyr to the cause, confidently
expecting as a reward, an immediate and eternal beatitude. The same authors
also observe that this circumstance is neither mentioned by any contemporary
historians, nor even by any one who lived within sixty years of that time. This
argument will go. however, but a short distance to prove the falsity of the relation. Matthew Paris, and from him the principal account of John's reign is derived, was too great an enemy of that king to allow of any vices in the opposing
party; particularly in that class of society by a member of which this act is said
to have been committed. During the space of sixty years it was in every one's
memory, and after that period it is more than probable, that, had there not existed some foundation for such a report, it could never have descended to later
times through the medium of written history "-THoMPsoN's Magna Charta, p. 32
et seq.
6. Personal Liberty as Secured by the Charter.-" The thirty-ninth article of
this charter is that important clause which forbids arbitrary imprisonment and
punishment without lawful trial:'Let no freeman be imprisoned or outlawed,
or in any manner injured, nor proceeded against by s, otherwise than by the legal
judgment of his peers, or by the law of the land.' Ian this clause are clearly contained the writ of habeas corpus and the trial by jury-the most effectual securities
against oppression which the wisdom of man has hitherto been able to devise  It
is surely more praiseworthy in these haughty nobles to have covered all freemen
with the same buckler as themselves than not to have included serfs in the same
protection:' We shall sell, delay, or deny justice to none.' No man can
carry farther the principle that justice is the grand debt of every Government to
the people, which cannot be paid without rendering law cheap, prompt, and equal.




190              THE GIVING OF MAGNA CHARTA.
Nor is the twentieth section unworthy of the like commendation:'A freeman
shall be amerced in proportion to his offence, saving his contenement, and a
merchant saving his merchandise.' And surely the barons must be acquitted
of an exclusive spirit who subjoin'and the villain saving his wagonage.' It
seems to be apparent from Glanville that villainage was a generic term for servitude in the reign of Henry II., so that the villain of the Great Charter must
have been at least a species of serf. The provision which directs that the
supreme civil court shall be stationary, instead of following the king's person,
is a proof of that regard to the regularity, accessibility, independence, and dignity of public justice, of which the general predominance peculiarly characterizes that venerable monument of English liberty. The liberty of coming to
England and going from it, secured to foreign merchants of countries with whom
this kingdom is at peace (unless there be a previous prohibition, which Lord
Coke interprets to mean by act of Parliament), even if we should ascribe it to
the solicitude of the barons for the constant supply of their castles with foreign
luxuries, becomes on that very account entitled to regard, inasmuch as the language must be held to be deliberately chosen to promote and insure the purpose
of the law." —MCKINTOSH.




fakgna Qharta.
JOHN, by the grace of God, king of England, lord of Ireland,
duke of Normandy and Aquitaine, and count of Anjou; to his
archbishops, bishops, abbots, earls, barons, justiciaries, foresters,
sheriffs, governors, officers, and to all his bailiffs and liegemen,
greeting:
Know ye, that in presence of GOD, and for the health of our
soul and the soul of our ancestors and heirs, and to the honor of
God and to the exaltation of His Holy Church, and for the amendment of our kingdom; by advice of our venerable fathers, Stephen,
archbishop of Canterbury, primate of all England, and cardinal
of the Holy Roman Church; Henry, archbishop of Dublin; William of London, Peter of Winchester, Jocelyn of Bath and Glastonbury, Hugh of Lincoln, Walter of Worcester, William of Coventry,
and Benedict of Rochester, bishops; Master Pandulph, our lord
the Pope's subdeacon and servant; Brother Aymeric, master of the
Temple in England; and the noblemen William Marescall, earl of
Pembroke, William earl of Salisbury, William earl of Warren,
William earl of Arundel, Alan de Galloway, constable of Scotland, Warin Fitzgerald, Peter Fitzherbert, Hubert de Burgh,
seneschal of Poictou, Hugh de Neville, Matthew Fitzherbert,
Thomas Basset, Alan Basset, Philip de Albiney, Robert de
Roppelaye, John Marescall, John Fitzhugh, and others our liegemen; we have granted to GOD, and by this our present charter
confirmed, for us and our heirs forever:
1. That the English church shall be free and enjoy her whole




192                    MAGNA CHARTA.
liberties inviolate.  And that we will have them so to be observed,
appears from this that of our mere good will we granted, and by our
charter confirmed, the freedom of elections which was reckoned most
necessary for the English church, and obtained the confirmation
thereof from our lord the Pope Innocent the Third, before the
discord which has arisen between us and our barons; which charter
we will ourselves observe, and will that it be observed in good faith
by our heirs forever. We have also for us and our heirs forever
granted to all the freemen of our kingdom, all the underwritten
liberties to have and to hold to them and their heirs from us and
our heirs.
2. If any of our earls or barons, or others holding lands of us
in capite by military service shall die, and when he dies his heir
shall be of full age and owe a relief, the heir shall have his inheritance by the ancient relief; the heir or heirs of an earl for a whole
earl's barony, by one hundred pounds; of a baron for a whole
barony, by one hundred pounds (marks); of a knight for a whole
knights fee, by one hundred shillings at most; and he who owes a
less relief shall pay less according to the ancient custom of his fee.
3. But if the heir shall be under age, and shall be in ward, when
he comes of age he shall have his inheritance without relief or fine.
4. The warden of the heir under age shall take only reasonable
issues, customs, and services; and that without destruction or waste
of men or things. And if we shall commit the guardianship of
these lands to the sheriff or any other who is answerable to us for
their revenues, and he shall make destruction or waste on the ward
lands, he shall make satisfaction; and the lands shall be intrusted
to two lawful and discreet men of that fee, who shall be answerable
to us.  Or, if we shall give or sell the wardship of lands to any
one, and he shall make destruction or waste, he shall lose his wardship, and the lands shall be intrusted to two discreet men of that fee,
who shall be answerable to us as aforesaid.
5. The warden, for as long as he shall hold the land, shall, from
the revenues thereof, maintain the houses, parks, warrens, ponds
mills, and other things thereto pertaining; and he shall restore to
the heir when he comes of age his whole land stocked with ploughs




MA.GNA CHARTA.                      193
and carriages according as the time of wainage shall require, and
the revenue of the estate will reasonably allow.
6. Heirs shall be married without disparagement of their rank,
yet in such wise, that before the marriage is contracted the blood
relations of the heir shall be acquainted with it.
7. A widow, after the death of her husband, shall forthwith and
without difficulty have her marriage and her inheritance; nor shall
she give anything for her dower, marriage, or her inheritance which
she and her husband may have held on the day of his decease; and
she may remain in the house of her husband forty days after his
death, within which term her dower shall be assigned.
8. No widow shall be distrained to marry herself while she shall
desire to live without a husband; but she shall give security not to
marry without the king's assent, if she holds of him; or without the
consent of the lord of whom she holds, if she holds of another.
9. Neither we nor our bailiffs shall seize any land or rent for
any debt, so long as the chattels of the debtor are sufficient for the
payment of the debt. Nor shall the sureties of the debtor be
distrained, so long as the principal debtor is sufficient for the payment of the debt. And if the principal debtor fail in the payment
of the debt, not having wherewithal to discharge it, then shall the
sureties be answerable for the debt. And, if they will, they shall
have the lands and rents of the debtor until they shall be satisfied
for the debt they have paid for him; unless the principal debtor
shall show himself acquitted thereof against the said sureties.
10. If any one shall have borrowed any thing fromn the Jews,
more or less, and shall die before that debt be paid, the debt shall
pay no interest so long as the heir shall be under age, of whomsoever he may hold; and if that debt shall fall into our hands, we will
take nothing but the chattel named in the bond.
11. And if any one shall die indebted to the Jews, his wife shall
have her dower and shall pay nothing of that debt; and if children
of the deceased shall remain, under age, necessaries shall be provided for them according to the tenement which belonged to the
deceased; and out of the residue the debt shall be paid, saving the
9




194                     MAGNA CHARTA.
rights of lords (from whom the lands are held). In like manner let
it be done with debts due to others than Jews.
12. No scutage nor aid shall be imposed in our kingdom excepting for the ransom of our person, to make our eldest son a
knight, and once to marry our eldest daughter; and for these none
but a reasonable aid shall be demanded. So, likewise, let it be concerning the aid of the city of London.
13. And the city of London shall have all its ancient liberties
and free customs, as well by land as by water. Furthermore, we
will and grant that all other cities, burghs, towns, and ports, have
all their liberties and free customs.
14. And for the holding of the common council of the kingdom
to assess aids other than in the three aforesaid cases, and for the
assessing of scutages, we will cause the archbishops, bishops, abbots,
earls, and greater barons to be summoned individually by our
letters; moreover, we will cause all others in general who hold of
us in capite to be summoned by our sheriffs and bailiffs on a certain
day, to wit: forty days at least (before the meeting), and to a
certain place; and in all letters of summons, we will declare the
cause of the summons. And the summons being thus made, the
business shall proceed on the day appointed, according to the
advice of those who shall be present, although all that shall be
summoned may not come.
15. We will not, for the future, give leave to any one to take
an aid from his own free tenants, unless to redeem his own body,
to make his eldest son a knight, and once to marry his eldest
daughter; and for these none but a reasonable aid shall be paid.
16. No man shall be distrained to do more service for a knight's
fee or other free tenement, than what is justly due therefrom.
17. Common pleas shall not follow our court, but shall be
holden in some certain place.
18. Trials upon the writs of novel disseisin, mort d'ancestre, and
darrein presentment, shall be taken only in their proper counties,
and after this manner: We, or, if we shall be out of the realm,
our chief justiciary, will send through every county, four times in




MAGNA CHARTA.                       195
the year, two justiciaries, who, with four knights of the county,
elected by the county, shall hold the aforesaid assizes in the county,
on the county day, and at the county place.
19. And if the aforesaid assizes cannot be held on the county
day, let as many of the knights and freeholders, who have been
present at the county court, remain behind, as shall be sufficient to
conduct the trials, according as the business shall be, more or
less.
20. A freeman shall not be amerced for a slight offence, but in
proportion to the degree of the offence; and for a great offence he
shall be amerced according to its magnitude, saving to him his
contenement; likewise, a merchant shall be amerced, saving to him
his merchandise; and a villain in the same way, saving his wainage
if he falls under our mercy; and none of the aforesaid amerciaments shall be assessed, but by the oath of honest men of the
neighborhood.
21. Earls and barons shall not be amerced but by their peers
and according to the degree of their offence.
22. No clerk shall be amerced for his lay tenement but in the
manner of the others aforesaid, and not according to the quantity of
his ecclesiastical benefice.
23. Neither town nor man shall be distrained to build bridges
over rivers, save those who anciently and rightfully are bound to
do it.
24. No sheriff. constable, coroners, or other our bailiffs shall
hold pleas of our crown.
25. All counties, hundreds, trethings, and wapentakes shall stand
at their old rents without increase, except in our demense manors.
26. If any one, holding of us a lay fee, dies, and the sheriff or
our bailiff shall show our letters patont of summons concerning a
debt due to us from the deceased, it shall be lawful for the sheriff
or our bailiff to attach and register the chattels of the deceased
found upon his lay fee, to the amount of that debt, by the view of
lawful men, so that nothing be removed until our whole debt be
paid: and the rest shall be paid to the executors to fulfil the will




196                    MIAGNA CHARTA.
of the deceased; and if there be nothing due from the deceased to
us, the chattels shall remain to the deceased, saving to his wife and
children their reasonable shares.
27. If a freeman shall die intestate, his chattels shall be distributed by the hands of his nearest relations and friends, by
view of the church, saving to every one the debts which the deceased owed.
28. No constable or other our bailiff shall take the corn or
other goods of any man unless he instantly pay money for it, or
obtain a respite of payment by the free will of the seller.
29. No constable (of a castle) shall distrain any knight to give
money for castle guard, if he be willing to do guard in his own
person, or by another able man, if he himself, for reasonable cause,
cannot perform it. And if we shall have led or sent him to the
army, he shall be excused from castle guard according to the time
he shall be in the army by our order.
30. No sheriff nor bailiff of ours, nor. any other person, shall
take the horses or carts of any freeman, for carriage, without the
free consent of the said freeman.
31. Neither we nor our bailiffs, will take another man's timber
for our castles or other uses, unless by the consent of the owner of
the timber.
32. We will not retain the lands of those who have been convicted of felony, but for one year and a day, and then they shall be
delivered to the lord of the fee.
33. All wears shall, for the future, be wholly removed from the
Thames and Medway, and throughout all England except on the
seacoast.
34. The writ which is called prcacipe shall not for the future be
granted to any one of any tenement whereby a freeman may lose
his court.
35. Throughout our whole kingdom there shall be one measure
of wine; and one measure of ale; and one measure of corn; namely,
the quarter of London; and one width of dyed cloths, and russets,




MAGNA CHARTA.                      197
and halberjects, namely, two ells within the lists. And it shall be
with weights as with measures.
36. From henceforth nothing shall be given or taken for the
writ of inquest of life or limb; but it shall be given without charge
and not denied.
37. If any man hold of us by fee-farm, socage, or burgage, and
hold land of another by military service, we shall not have the
wardship of the heir or of the land which belongs to another man's
fee on account of the aforesaid fee-farm, socage, or burgage; nor
shall we have the wardship of the free-farm, socage, or burgage, unless the fee-farm owe military service. We shall not have the wardship of any man's heir, or of the land he holds of another on account of any petty serjeantry he holds of us by the service of
giving us daggers, arrows, or the like.
38. No bailiff shall henceforth put any man to his law upon his
own single accusation without credible witnesses produced for that
purpose.
39. No freeman shall be taken, or imprisoned, or dispossessed,
or outlawed, or banished, or in any way destroyed; nor will we
pass upon him, nor commit him, but by the lawful judgment of his
peers, or by the law of the land.
40. To no man will we sell, to none will we delay, to none will
we deny right or justice.
41. All merchants shall have safety and security in coming into
England and departing out of England, and in tarrying and travelling through England, as well by land as by water, to buy and sell
without any evil tolls, according to the ancient and just customs;
except in time of war, when they shall be of any nation at war
with us. And if any such be found in our land at the beginning
of a war, they shall be apprehended without injury of their bodies
or their goods, until it shall be known to us or our chief justiciary
how the merchants of our country are treated who are found in the
country at war with us. And if ours be safe there, the others shall
be safe in our land.
42. Henceforth it shall be lawful to any person to go out of our




198                   MAGNA CHARTA.
kingdom and to return safely and securely, by land or by water,
saving his allegiance to us, unless for some short space in time of
war, for the common good of the kingdom; except prisoners and
outlaws by the law of the land, people of a country at war with
us, and merchants who shall be treated as aforesaid.
43. If any man hold of any escheat, as of the honor of Wallingford, Nottingham, Boulogne, Lancaster, or any other escheats
which are in our hand and are baronies, and shall die, his heir
shall not give any other relief, nor do any other service to us, than
he would to the baron if the barony were in a baron's hand; and
we will hold it in the same way in which the baron held it.
44. Men who dwell without the forest shall not hereafter come
before our justiciaries of the forest on a common summons, unless
they are parties to a plea or sureties for any who have been apprehended for something concerning the forest.
45. We will not make justiciaries, sheriffs, or bailiffs except of
such as know the law of the land, and are disposed duly to observe it.
46. All barons who have founded abbeys which they hold by
charter of the kings of England, or by ancient tenure, shall have
the custody thereof when they fall vacant, as they ought to have.
47. All forests which have been made in our time shall be immediately disforested; and it shall be so done with the embankments which have been erected as obstructions to the rivers in our
reign.
48. All evil customs of forests and warrens, foresters and warreners, sheriffs and their officers, embankments and their keepers,
shall forthwith be inquired into in every county by twelve sworn
knights of the same county, who must be elected by the good men
of the county; and within forty days after the holding of the inquisition they shall, by the said knights, be utterly abolished so as
never to be restored; provided that we be first notified thereof, or
if we be not in England, our chief justiciary.
49. We will forthwith restore all hostages and charters which




MAGNA CIHARTA.                     199
have been delivered to us by the English in security of peace and
faithful service.
50. We will remove from their bailiwicks the kinsmen of Gerard
de Athyes, so that henceforth they shall have no bailiwick in England; Engelard of Cygony; Andrew, Peter, and Gyone de Chancell; Gyone de Cygony; Geoffrey de Martin and his brothers;
Philip Mark and his brothers, and Geoffrey his brother, and all
their retinue.
51. And immediately after the conclusion of peace we will
remove from the kingdom all foreign knights, crossbowmen, and
mercenary soldiers who have come with horses and arms to the
injury of the kingdom.
52. If any man hath been by us deprived or dispossessed, without the lawful judgment of his peers, of lands, castles, liberties, or
rights, we will forthwith make restitution; and if any dispute arise
on this head, then the matter shall be settled by the judgment of
five and twenty barons hereinafter mentioned for the preservation
of the peace.  Concerning all those things of which any man hath
been deprived or dispossessed, without the legal judgment of his
peers, by King Henry our father, or King Richard our brother,
which we hold in our own hand or others hold under our warrant, we
shall have respite until the common term of the Crusaders; except
those concerning which a plea has been moved, or an inquisition
made by our direction, before our taking the cross; but so soon as
we shall return from our expedition, or if by chance we should not
go upon our expedition, we will forthwith do therein full justice.
53. We shall have like respite, and upon the like conditions, in
doing justice by disforesting the forests which Henry our father or
Richard our brother afforested, and the same concerning the wardship of lands belonging to another man's fee, of which we have
hitherto had wardship on account of some fee held by the tenant from
us by military service; and concerning abbeys founded in a fee
which is not ours, and in which the lord hath claimed a right; and
when we shall have returned, or if we should not go upon our expedition, we shall forthwith do full justice to complainants in these
matters.




200                   MAGNA CHARTA.
54. No man shall be taken or imprisoned on the appeal of a
woman for the death of any other than her husband.
55. All fines that have been made unjustly and contrary to the
law of the land, and all amerciaments imposed unjustly, contrary
to the law of the land, shall be wholly remitted; or order shall
therein be taken by the five and twenty barons hereinafter mentioned for the security of the peace, or by the verdict of the greater
part of them, together with the aforesaid Stephen, archbishop of
Canterbury, if he can be present, and such others as he may think
fit to bring with him; but if he cannot be present, the business
shall nevertheless proceed without him; yet so, that if any one or
more of the aforesaid five and twenty barons have a like plea, they
shall be removed from that particular trial, and others elected and
sworn for that trial only by the residue of the five and twenty shall
be substituted in their room.
56. If we have deprived or dispossessed any Welshmen of their
lands, or liberties, or other things, without a legal verdict of their
peers, restitution shall forthwith be made; and if any dispute shall
arise upon this head, then let it be determined in the Marches by
the judgment of their peers; for tenements of England, according
to the law of England; for tenements of Wales, according to the
law of Wales; and for tenements of the Marches, according to the
law of the Marches. The Welsh shall do the same to us and to
our subjects.
57. Also, concerning those things of which any WVelshman hath
been deprived or dispossessed without the lawful judgment of his
peers, by King Henry our father, or King Richard our brother, and
which we hold in our hand or others hold under our warrant, we
shall have respite until the common term of the Crusaders, except
for those concerning which a plea bath been moved, or an inquisition made by our command before taking the cross. But as soon
as we return upon our expedition, or if by chance we should not
go upon our expedition, we shall immediately do full justice therein,
according to the laws of Wales and of the parts aforesaid.
58. We will forthwith release the son of Llewellyn, and all the




MAGNA CHARTA.                      201
charters and hostages of Wales which were delivered to us for security of the peace.
59. We will do to Alexander, King of Scotland, concerning
the restoration of his sisters and hostages, and concerning his liberties, and concerning his rights, according to the form in which we
do to our other barons of England, unless it ought otherwise to be
according to the charters which we have from William, his father,
the late King of Scots; and this shall be by the judgment of his
peers in our court.
60. All the aforesaid customs and liberties which we, for our
part, have granted to be holden in our kingdom by our people, let
all within the kingdom, as well clergy as laity, observe toward
their vassals.
61. But forasmuch as we have granted all these things aforesaid to GOD, both for the amendment of our kingdom and for
the better settling of the discord which has sprung up between us
and our barons; and forasmuch as we desire that these things
should remain in perfect and complete stability forever; therefore
we do make and grant them the security underwritten, to wit:
that the barons may elect twenty-five barons of the kingdom,
whom they please, who shall, with their whole power, observe,
keep, and cause to be observed, the liberties which we have granted
and confirmed to them by this our charter: that is to say, if we or our
justiciary, or our bailiffs, or any of our officers, shall have injured
any one in anything, or shall have transgressed any article of peace
or security, and the injury shall be shown to four of the aforesaid
five and twenty barons, the four barons shall come to us, or to our
justiciary if we shall be out of the kingdom, and making known to us
the wrong committed, shall petition us to cause it to be redressed
without delay. And if we, or our justiciary if we be not in the
kingdom, do not redress the wrong within the term of forty days,
to be reckoned from the time when we were notified thereof, or
when our justiciary was notified, if we were not within the kingdom, the aforesaid four barons shall lay the cause before the
residue of the five and twenty barons; and they, the five and
twenty barons, with the community of the whole land, shall harass
9*




202                    MAGNA CHARTA.
and distress us in whatever ways they shall be able, by the capture
of our castles, lands, and possessions, and by any other means
they can, until the injury have been redressed according to their
judgment: saving harmless our own person and the persons of
our queen and children: and when the wrong hath been redressed,
they shall behave to us as they have done before. And whoever
of our land shall please, may swear that he will obey the commands of the aforesaid five and twenty barons in accomplishing all
these aforesaid things, and that, together with them, he will harass
us according to his power. And we do publicly and freely grant,
to every man who chooses, leave to take this oath, nor will we ever
forbid any man to take it. But all men of our land, who, of themselves and of their own choice, shall be unwilling to swear to the
five and twenty barons to distress and harass us, together with
them, we will compel by our command to swear as is aforesaid.
And if any of the five and twenty barons shall die, or leave the
country, or in any other way be hindered from the execution of the
things aforesaid, then the rest of the aforesaid five and twenty
barons shall, at their pleasure, choose another in his stead, who
shall be sworn in the same manner as the rest. Now, in all the
things which are intrusted to be executed by these five and twenty
barons, if it happen that the five and twenty shall be present, and
shall disagree concerning any matter; or if some of them, having
been summoned, be unwilling or unable to attend, that which the
greater part of those who may be present shall determine or decree,
shall be held as firm and valid as if all the twenty-five had been
agreed therein; and the aforesaid five and twenty men shall swear
that they will faithfully observe all the aforesaid things, and to the
utmost of their power cause them to be observed. And neither by
ourself nor through another will we obtain anything from any man,
through which any of these grants and liberties may be revoked or
lessened. And if any such thing shall have been obtained, it shal!
be null and void; and we will never use it, through ourself or
through another.
62. And to all men we have fully remitted and pardoned all
the ill wills, resentments, and rancors, which have arisen between




MAGNA CHARTA.                     203
us and our subjects, lay and clerical, from the commencement of
our disagreement. Moreover, we have fully remitted, and so far
as in us lies, have fully pardoned to all the clergy and laity, all
transgressions, committed by occasion of the same disagreement,
from the Easter of the sixteenth year of our reign to the conclusion
of the peace. And further, we have caused testimonial letters
patent to be made for them concerning this security and the aforesaid grants from the lord Stephen, archbishop of Canterbury, the
lord Henry, archbishop of Dublin, and from Master Pandulph.
63. Wherefore we do will and firmly do command that the
Church of England be free; and that all men in our kingdom have
and hold all the aforesaid liberties, and rights, and grants, well and
in peace, freely and quietly, fully and wholly, as aforesaid, to them
and their heirs, from
us and our heirs forever.  It is also
sworn, as well on
our part as on that
of the barons, that
all the things aforesaid shall be observed in good faith and
without evil inten- / 
tion. Witnessed by                                    o
the above and many
others.  Given by
our own hand, in
the   mead  called                               l
Runnymede,  between Windsor and
Staines,  this  fifteenth day of June,
in the seventeenth
year of our reign.




Qouelant of  ecuatitB.
THIS is the covenant made between our lord John, king of England, on the one part, and Robert Fitzwalter, elected marshal of
GOD and of the Holy Church in England, and Richard earl of
Clare, Geoffrey earl of Essex and Gloucester, Roger Bigod earl of
Norfolk and Suffolk, Saher earl of Winchester, Robert earl of
Oxford, Henry earl of Hereford, and the barons underwritten:
that is to say, William Marshall the younger, Eustace de Vescy,
William de Mowbray, John Fitz Robert, Robert de Mont-Begon,
William de Lauvalay, and other earls and barons and freemen of
the whole kingdom, on the other part: namely, That they, the
earls and barons, and others before written, shall hold the custody
of the city of London in bail from our lord the king; saving that
they shall clearly render all the debts and revenues within the
same to our lord the king, until the term of the Assumption of the
Blessed Virgin Mary, in the seventeenth year of his reign.
And the lord of Canterbury shall hold, in like manner of bail,
from our lord the king, the custody of the tower of London, to the
aforesaid term: saving to the city of London its liberties and free
customs, and taking his oath, in the keeping of the said tower, that
our lord the king shall, in the meanwhile, not place a guard, or
other forces, in the aforesaid city, nor in the tower of London.
And that, also, within the aforesaid term, the oaths to the
twenty-five barons be tendered throughout all England, as it is
tendered in the charter granted concerning the liberties and security of the kingdom, or to the attorneys of the twenty-five barons,
as it is contained in the letters granted concerning the election of
twelve knights for abolishing evil customs of the forests, and




COVENANT 6F SECURITY.                  205
others.  And moreover, within  the said term, all the other
demands which the earls, barons, and other freemen do ask of our
lord the king, which he himself has declared to be granted to
them, or which by the twenty-five barons, or by the greater part
of them, shall be judged proper to be granted, are to be given
according to the tenor of the said charter. And if these things
shall be done, or if our lord the king, on his part, shall agree to do
them within the term limited, then the city and tower of London
shall, at the same term, be delivered up to our lord the king;
saving always to the aforesaid city its liberties and free customs, as
it is before written. And if these things shall not be done, and if
our lord the king shall not agree to do them within the period aforesaid, the barons shall hold the aforesaid city, and the lord archbishop the tower of London, until the aforesaid deed shall be
completed. And in the meanwhile, all of both parts shall recover
the castles, lands, and towns which have been taken in the beginning of the war that has arisen between our lord the king and the
barons.




NOTES ON THE GREAT CHARTER.
Introduction.-The four causes for granting Magna Charta are the prominent
parts of the opening: the honor of God, the benefit of the king's soul-as a
pious action-the exaltation of the church, and the amendment of the kingdom.
The last expression to be observed is, that the words spontaneously and of our
own free will, were added in the subsequent charter of Henry III. because King
John endeavored to avoid the execution of his grant, asserting that it had been
extorted from him by force.
CH. I.-The expression to grant unto God, with which this section commences, was an ancient legal phrase, employed when anything was bestowed for the
use and maintainance of the church; since the thing so given was supposed to
be granted to God, as it was for his service. King John was the first sovereign
who used the plural pronoun We in his grants, as all the preceding monarchs
wrote in the first person singular.
CH. II.-This section of the Great Charter refers to an ancient law connected
with feudal tenures, by which it was supposed that the lord of the estate was the
real proprietor of all: though the tenant, while he was able to do service for
the land, held it in possession and enjoyed its products. The grants issued by
the superior lord lasted for life only; and, upon the decease of a tenant, if his
heir were not of an age sufficient to discharge all the services belonging to that
fee, or estate, it still remained in the possession of the chief lord until he should
be able to do so; for, it must be observed, that these services were, for the most
part, doing duty in the field.
The most ancient relief is called a heriot, from the Saxon here-geat, which
literally signifies armor and weapons.  "A tribute," says Somner, in his'Dictionarium Saxonico-Latino-Anglicum,' "of old given to the Lord of a manor, for
his better preparation towards warre. We now call it a Heriot, and understand
by it, the best horse, ox, cow, or such like chattell, which the Tenant hath at the
houre of his death, due to the Lord by custome." It was probably from this circumstance, then, that the original reliefs were ordained to be paid in armor:
and by the laws of King William the First, the relief of an Earl was eight horses
saddled and bridled, four helmets, four coats of mail, four shields, four spears.
four swords, four chasors, or hunting horses, and one palfrey bridled and saddled.
A baron was to give half as much with the palfrey. A vavasor, the next degree
to a peer, was to present his lord with his best horse, his helmet, coat of mail,




NOTES ON THE GREAT CHARTER.                         207
shield, spear, and sword, or instead of these one hundred shillings.  A countryman's relief was his best beast, and he who farmed his lands gave a year's rent.
Thus there was originally a scale of settled sums for the lands of the different
degrees, from the highest downward; but previous to John's reign, especially
in those of King William Rufus and Henry II. reliefs became arbitrary, and
often, under the title of a reasonable relief, considerable oppressions were imposed. The sums mentioned in the text would be about twenty times their
value in modern currency; ten times in allowing for the difference of coin, and
ten more in the quantity and worth of the article to be procured. The ancient
relief, however, to which the present chapter of Magna Charta alludes, was the
giving up the fourth part of the value of an earldom, a barony, or a knight's
fee for one year.
CH. III.-The intent of this chapter is to preserve the old statute of the
common law regarding military service, by which it is provided that the lord of
an estate cannot both have guardianship of the heir and his land, and also a relief when he shall come of age to do knight's or warlike service for it. For this
cause, then, if a person held lands of the king in chief, and different lands under
some other lord, both by military duty; the king by his prerogative had the
wardship of all, and, upon the heir's coming of age, a relief was paid to the
other by way of recompense.
CH. IV.-The intent of this and the following chapter of the great charter,
was to prevent the sovereign from placing rich estates of heirs under age in the
custody of mercenary men, who might exact heavier rents and services than the
land had ever before been rated at; or who could destroy or neglect any of the
property so committed to them.
Guardians of estates held by military service were, as Lyttleton observes, of
two kinds: a guardian in right, which was when the superior lord upon the decease of his tenant became, in virtue of his title, the possessor of the heir and
his lands; and a guardian in fact, which is where the superior lord, after having
made his claim, grants the wardship to another, who comes into possession by the
force of that grant. This latter species of guardian is that mentioned in the
text.
Issues, or as the original word may be better translated, outgoings, signify the
rents and profits issuing from the lands or tenements of the ward, which are to
be taken by the guardian in a reasonable manner, according to what is allowed
by law. Customs are privileges due or appendant to the lands of the ward, such
as advowsons or presentations to ecclesiastical livings, commons, waifs and
strays, tenant fines, &c. Services were those duties accruing to the lord from his
copyhold tenants, which were of the nature of feudal services, being annual and
accidental, as well as comprising homage and fealty. The reasonableness of these
various provisions was to be decided by the king's justices.
With regard to the saving clause in this chapter, concerning the destruction
and waste of the men or goods, it will be proper to explain it, as it concerns the
legal signification of those terms.  Waste is committed in neglecting to repair
~~ --- - ----— ~-  -- ~b~''Y''r0




208               NOTES ON THE GREAT CHARTER.
houses, in damage done to gardens, and in the cutting down of timber trees
Destruction of goods is cutting down of young timber plants, and any other
kind of trees set for the defence of the house. Exile, or destruction of men, is
when by any oppression they are reduced to poverty, and forced to quit their
dwellings upon the estate. It should be observed that the fair profits of. the
land were claimed by the lord of an heir under age, that out of them he might
provide some person to supply his defect of service until he should be able to
act for himself. (Wright.)
CH. V.-The laws enforced by this chapter of Magna Charta are similar to
the agreement of repair which exists between a landlord and tenant for years,
as may be seen by a reference to Sir Edward Coke's Commentary upon Littleton,
Book I., chap. vii., sec. 67.
CH. VI.-The tenure of military service was connected with the right of a
superior lord to bestow his tenants in marriage; or at least his consent was required before any union could take place with one of his followers, and the reason for this was certainly a fair one; because, according to the principles of feudal tenures, it was proper to prevent any person who enjoyed a part of the land
from bringing into the joint possession of it either an enemy of the superior
lord, or one of a family at enmity with him. If therefore a military tenant
married without his lord's consent, his fee was forfeited.
A female heir might be given in marriage by her father at the age of twelve,
but fourteen was called her age of discretion, or time when she might consent or
disagree to marriage under a feudal lord; but if her ancestor died before she
had reached the age of fourteen or was married, then she was to remain in ward
until the age of sixteen, in which two years it was supposed that her lord might
tender io her a suitable marriage. This if he neglected to do, at the end of the two
years she could enter on possession of her estate. If, on the contrary, she were
married under the age of fourteen, in the life of her progenitor, and was also
under that age at his death, then the lord was to have wardship of her until she
attained to it, when her husband and she were immediately to enter on possession of her lands. The age of discretion for a male heir was fourteen, at which
time he might consent or disagree to any marriage his lord had formerly provided for him; and the old law was such that if he did then disagree to such marriage, although his lands remained in wardship until he should come to the full
age of twenty- one, yet he was free from ward as to his body, and his lord had no
right to marry him a second time.
One who gave his daughter in marriage without the consent of his lord, forfeited his inheritance.
During the time, however, that these laws existed, the present chapter of
Magna Charta was intended as an ancient institute of the common law, and
was doubtless inserted as a provision against mercenary or interested guardians
involving their wards in any improper connection, by way of securing the estates
for themselves. There were many kinds of disparagements; but for any of
these four principal ones, the heir, if married before the age of fourteen, when




NOTES ON THE GREAT CHARTER.                          209
he arrived at that age might disagree to the match, and it should then be dissolved by law: firstly, the marriage might be refused, if the party provided
were an idiot or lunatic; secondly, if they were of an inferior degree, one of
attainted blood, or illegitimate; thirdly, if they were imperfect in person, or deformed; and fourthly, if the bride were a widow, because that Awas considered as
bigamy, and precluded benefit of clergy.  The latter, however, was provided
against in 1541, the first year of Edward VI., cap xii. ~ 16, by an act entitled
" An Act for the repeal of certain statutes concerning treasons, felonies, &c.," in
which it was declared that benefit of clergy should be allowed to any persons,
notwithstanding their marriage with widows. 
CHS. VII., VIII.-Before the Norman conquest, a widow had no power to
marry again until one year should have expired after the death of her husband.
The word maritagium, as it occurs in the original text, is a technical expression signifying liberty to marry again, whereby the year of mourning was set
aside, so far as the law was concerned. The whole of this and the succeeding
chapter relates to the general right of widows, as they regarded the feudal system; for as females at that period possessed no personal fortune to entitle them
to a jointure, so the immediate provision of dower for their maintenance was
of the greatest importance. The widow, however, might remain in her late husband's dwelling (if it were not a castle) for forty days, which time was called
her quarantine, and which began on the day of his death, and continued to thirty-nine days after; if during that time she married, her widowhood was then
past, and she forfeited her dower.
With respect to the quantity of the dower, when granted, it was generally the
third part of the deceased's possessions, and thence called dos legitima, or lawful dower.
CH. IX. —This is the first act of grace contained in the great charter; for by
the common law, the king had execution of the body, lands, and goods of the
debtor, and he might also, by his prerogative, distrain for his rent in any other
lands which his tenant possessed, although they were not of his own fee. A
similar process was likewise used by many of the barons, and this was afterward carried to such an extent that they levied their distresses in the common
streets and highways.
CH. X.-By the laws of King Edward the Confessor, and the testimony of
Glenville and others, it was anciently not lawful for Christians to take any
sort of usury, so that interest for money wast paid to the Jews alone, and to
them only while the ancestor was living, or after his successor came to
full age.
CH. XI.-The expression in the text, savir7g the rights of the lords, is a
provision that all their lawful customs and services are not barred by this
protection of a tenant's property; and it infers that if they be neglected
or denied, the lord of the fee might distrain for wardship, relief, or
marriage.
CH. XII.-This chapter is to be found in its fullest extent in the great




210              NOTES ON THE GREAT CHARTER,
charter of King John only; and its subject is the levying of scutage, a tax
anciently paid by such as held lands by knight's service, toward furnishing the
royal army, at the rate of one, two, or three marks for every knight's fee. It
was originally derived of the Saxon words scyld and penig, the shield-penny;
whence it was translated into the Norman French escuage, and the law Latin
expression of scutagium, or service of the shield: this, says Lord Coke, " was
in respect of the scutum, or shield, which ought to be borne both by lord and
tenant in such wars."
The kings of England, therefore, anciently taking advantage of, or probably complying with this custoni of their tenants, and sometimes on occasion of war, assessed without summons a moderate sum upon every knight's
fee, as an escuage, wherewith they might provide foreign stipendiaries to
supply their defect of service. But as this species of escuage was really a
previous commutation between a tenant and his lord, and not incurred as a
fine, it was not long acceded to; and in the reign of King John it was not only
insisted upon as an undoubted right of the king's tenants, but the barons
procured the insertion of the present chapter of Magna Charta, that it should
be imposed only by the common council of the kingdom.
The amount of escuage assessed upon any estate was, of course, according
to the extent of it; this being estimated sometimes by the number of knight's
fees it contained, and at others by the value of the land.
This chapter in King John's charter also provides for another privilege
claimed by the superior lords under the feudal system, namely the assessing of
aids for defraying some of their own private charges. Strictly speaking, however, aids were not at first a direct feudal obligation, but were originally
sums of money obtained from the tenants, out of a regard to the person and
claims of the lord. In their most ancient state, too, both the amount and nature
of aids were as uncertain as the occasions which arose to demand them and
the property of the tenant could furnish; but in the course of years they became
established renders of duty, of which the three events mentioned in the text
gave, in Normandy, the most general opportunities for claiming. These soon
became fixed and established, to the exclusion of certain other unreasonable
demands made by the inferior lords of fees, which passed also under the title of
aids; as an assessment upon the tenants, to enable a lord to discharge his
debts; and one termed aide de relief, to furnish the sum required by the
law of reliefs already treated of. In the reign of King Henry II. also, it was
doubted whether the lords might not require aids toward the perfecting of
their military preparations; but all these illegal aids were abolished by the
present chapter of King John's great charter. At the same time, three certain
aids were permitted to be taken, as well by the king as by his barons: see
chap. xv., to which also this note will be a sufficient commentary. They were
ordained, however, to be taken in a lawful manner, and were, firstly, for redeeming the king's or a lord's body, that is to say, whenever he became a prisoner of
war; secondly, for making his eldest son a knight; and thirdly, for once marry



NOTES ON THE GREAT CHARTER.                        211
ing his eldest daughter. For the first of these causes the aid was less frequent
and more uncertain than any of the others; but at the same time it was of the
highest consequence that he should be ransomed at any rate, so often as he
might be made a prisoner of war. Sir William Blackstone, in his Commentaries, Book II., chap. 5, page 63, observes that as this species of aid was a
natural consequence of feudal attachment and fidelity, the omission of it,
whenever it was in the tenant's power, was, by the rigor of the feudal law, the
absolute forfeiture of his estate. The second species of aid was for making the
lord's eldest son a knight, " a matter," says the same authority, " that was formerly attended with great ceremony, pomp, and expense." The intent of this was to
bring up the heir of the lordship to arms and chivalry, for the better defence
of the nation, and the assessment could not be made until the young chief had
attained the age of fifteen, or at least was capable of bearing arms; but anciently, Sir Edward Coke observes, the lords would pretend that their eldest sons
were hopeful and forward, as in their abilities and stature, and they would
thence demand an aid larger than was due from their tenants, and also before
the proper time. The same grievance was likewise imposed, with respect to
the third kind of aid mentioned in the text, that of once marrying the lord's
eldest daughter;'by giving her," says Blackstone, "a suitable portion, for
daughters' portions in those days were extremely slender, few lords being able
to save much out of their income for this purpose; nor could they acquire
money by other means, being wholly conversant in matters of arms; nor, by
the law of their tenure, could they charge their lands with this or any other
encumbrances."
CH. XIII.-The present chapter of Magna Charta specifies two kinds of
franchises, namely, its ancient liberties and its free customs; the first of which
signify a royal privilege or branch of the king's prerogative, held by grant or
prescription, and existing in the hands of his subjects, by which he or they enjoy
privileges not common to ordinary persons. Free customs are liberties enjoyed
by custom or usage, which, in its legal sense, signifies a law not written, but
established by long use and the consent of ancestry.
Cu. XIV.-The first members of the English council, down to the time of
King Henry III., were those persons only who held of the king in chief, and who
are ordained to be summoned by the present chapter of Magna Charta; and
they are designated in the more ancient histories and works on law by several
names importing superior rank, as barons of the kingdom, the greater barons,
&c., and the assembly which they formed is called the Great Council or King's
Court, the word Parliament not coming into use until the latter part of the reign
of King Henry III. Baron Maseres supposes in his paper that this council met
at the least thrice in the year, at the feasts of Christmas, Easter and Whitsuntide, which meetings being in the ordinary course, required no issue of summons,
though there were occasionally others called for a special purpose, when the
king issued his command for the council to come together. The occupations,
however, were the same in each, as debates concerning war and peace, the grant



212              NOTES ON THE GREAT CHARTER.
ing of aids to the king, the regulation of the laws, and the trial of great causes
between the barons. The king however, at this period, had not the power of
omitting to call a baron to the Great Council, nor of summoning any person who
was not a tenant in chief.
The tenants in chief, according to Domesday, amounted to about seven hundred persons; but their baronies being very unequal in extent, and being in the
course of years repeatedly divided and subdivided, especially by partitions with
female heirs, they were diminished in quantity, while the number of tenants in
chief was considerably increased. There are instances, says Baron Maseres, of
persons holding the hundredth, and even the three hundredth part of a barony;
yet all these had a title to a seat in Parliament, and hence arose the distinction
between the greater and lesser barons. A difference between these is noted in
the present chapter of Magna Charta; for the king was therein bound to summon the former to Parliament individually by his letters, but the latter were to
be summoned in general by his sheriffs or bailiffs.
CH. XVI. —This statute was intended to relieve such as had no remedy by
the common law; and it was a restoration of the ancient law of England. It is
usually stated that the writ, entitled from its commencing words, " Ne injuste
vexes," was originally grounded upon this act. Sir William Blackstone, however, adopts the general belief following the "New Natura Brevium" of Fitzherbert; and explains that the writ is available where a tenant, who has held
of a lord by certain services, has inadvertently given his lord possession of more
and of greater.
The Court of Common Pleas, which this chapter made permanent in its
situation, is one of the king's courts now constantly held in Westminster Hall;
but in ancient time it was movable at the king's will, according to the place of
the royal residence: whereupon, says Lord Coke, "many discontinuances ensued,
and great trouble of jurors, charges of parties, and delay of justice; for these
causes this statute was made." Sir William Blackstone states that, in the Saxon
Constitution, there was only one superior court of justice in the kingdom, namely the General Council, of which some account has been already given. After
the Norman invasion, the ecclesiastical jurisdiction was separated from the
civil; and King William soon after effected another separation, of the judicial
and parliamentary power vested in the remaining members. On this account he
established a constant court in his own residence, entitled "Aula Regis," or the
King's Hall, which was composed of the great officers of state. Of these, the
Lord Marshal generally presided in matters relating to honor and arms, and the
military and national laws; the Lord Chancellor kept the royal seal, and had
cognizance of all letters, writs and grants, to which it was affixed; the Lord
Treasurer was the chief authority in affairs of the revenue; and certain persons
who had carefully studied the laws, called the king's justices, all of whom were
assisted by the greater barons of the realm, formed a court to be consulted in
cases of appeal or difficulty. Over this assembly presided an officer of great
rank and power, who was denominated the Chief Justiciary of all England. He




NOTES ON THE GREAT CHARTER.                        213
was esteemed the second person in the kingdom, of which, by virtue of his office,
he was guardian in the king's absence; and it was he who principally determined
the vast variety of causes that were brought before this court. As such an
establishment was bound to follow the king's household to whatsoever place it
might remove, the trial of common causes became so difficult to the people, that
its permanence formed one of the petitions of the barons in the preliminary articles of the great charter; and it was in consequence settled in Westminster
Hall, the place where the ancient kings of England were accustomed to reside,
in which it has in general ever since continued. At the same time were appointed justices of the common pleas, having a chief whose jurisdiction was to
hear and determine all pleas of land and injuries between subject and subject.
Trials for novel disseisin, for which this statute first provides, were inquisitions for the recovery of lands or tenements of which any party had been disseized or dispossessed; and the term novel, or new, was applied, because the justices who travelled went their circuits only from seven years to seven years; and
no assize was allowed before them which had commenced previously to the last
circuit, as such was called an ancient assize; while that which was concerning a
later dispossession, was termed an " assize of novel disseisin."  A trial of " mort
d'ancestre " was an inquiry after the death of any ancestor or relative who was
possessed of lands, &c., as estates which subsequently to their decease were abated
-broken down or destroyed-by a stranger; but the writ for this trial must be
brought within fifty years, or the right may be lost by the neglect. The term
ancestor is here considered to stop at the father in the ascending line, and the
writ assumes a new name for the more ancient relations. It should be observed
that both this writ and the former are now nearly obsolete, being almost superseded by the action of ejectment, excepting in some very peculiar cases. A trial
or assize of darrien presentment takes place when a person, or his ancestors under
whom he claims, have presented a clerk to a benefice, and upon the next vacancy
a stranger presents, disturbing him who is the real patron. In such a case, the
true patron shall have a writ of last presentation directed to the sheriff, to summoli an assize or jury, to inquire who was the last patron that presented to the
vacant church; and according as the cause is decided, a writ is issued to the
bishop to institute that clerk in favor of whose patron it is determined. Assizes
of this nature were formerly conclusive, but they are now wholly disused, in
consequence of a statute of the 7th of Anne, 1708, cap. xviii., by which a person
has a right to recover if his title be good, notwithstanding the writ of last presentation. Previously to the making of this charter, all the above writs were
required to be brought before the king or his justiciary, wherever they might
happen to be; but the present chapter tended considerably to relieve the jurors
and parties in the plea, both in time and in expense, since by it justice was ordained to be administered to them in their own counties, without their following the king's court, or that of the common pleas, to a distant place.
CH. XXI., XXII. —The term "amerciament " is derived of the French a merci,
and signifies the pecuniary mulct laid upon an individual who has offended, and




214              NOTES ON THE GREAT CHARTER.
therefore lies at the mercy of the king. Amerciaments, properly so called, are
penalties assessed by the peers or equals of the offending party; and they are
considered as more merciful than fines, because, if they are too heavy, a release
may be sued by an ancient writ founded upon Magna Charta.
The next species of amerciament mentioned in the text, is that to be assessed
on a merchant, and this was to be done, saving his merchandise, upon the same
principle as before; "for trade and traffic," says Lord Coke, "are the livelihood
of the merchant and the life of the commonwealth."
Of villains in England under the feudal system, there were two kinds: the
first were called villains in gross, and were such as belonged to the person of a
lord and his heirs; and the second were those who belonged to a manor, and appertained to the lord thereof only while he held it. These were termed villains
regardant. But though the condition of a pure villain was such, that his lord
was entitled to impose upon him those aids and taillages already treated of, and
even to dispossess him of all his property, yet the great charter has, with great
humanity, a clause in its favor which states that he shall be amerced with safety to
his wainage. This word is derived from the Saxon wagna, which signifies a cart
or wagon; and the most liberal meaning of the passage is, that tillage and
husbandry shall not be hindered by levying a distress or amerciament.
CH. XXIII.-The original intent of this statute was to avoid the repetition
of those fictitious exactions which, during the reigns of Richard I. and John,
were made in the king's name for making of bridges, banks, fortresses, and bulwarks, contrary to law.
CH. XXIV.-Pleas of the crown, which it is the object of this chapter to
preserve, are those suits which the king commences against all crimes and misdemeanors; "because," says Sir William Blackstone, " in him centres the
majesty of the whole community, and he is supposed by the law to be the person injured by every infraction of the public rights belonging to that community, and is therefore in all cases the proper prosecutor for every public
offence." The persons, then, by whom these pleas could not be held, comprise
all classes of the royal officers, although four degrees only are mentioned in the
text. Sheriffs were the chief officers under the king in every county, deriving
their title from the two Saxon words shire and reve, the bailiff or steward of the
division. They are called, however, in the Latin text of the great charter,
vicecomes, which signifies, in place of the earl of the county, who anciently
governed it under the king. The next officer mentioned in this chapter of Magna Charta, is called constabularius, or constable, which is sometimes derived
from the Saxon; but other authorities have conceived it, more truly, to come
from the Latin comes stabuli, a superintendent of the imperial stables, or master of the horse. This title, however, began, in the course of time, to signify a
commander, in which sense it was introduced into England. In the present
instance, the word is put for the constable, or keeper of a castle, frequently
called a castellan, of whose dignity mention will be made in a future note.
They were possessed of such considerable power within their own precincts,




NOTES ON THE GREAT CHARTER.                         215
that previously to the present act they held trials of crimes, properly the cognizance of the crown, as the sheriffs did within their respective bailiwicks, and
sealed with their own effigies on horseback.
As prisons were considered to be an important part of all ancient castles,
these officers are sometimes called constables of fees, which signifies those who
were paid for keeping of prisons. In this part of their duty they appear often
to have been guilty of great cruelty.
The title of coroner implies that he was an officer of the crown, to whom, in
certain cases, pleas of the crown, in which the king is more immediately concerned, are properly belonging; and in this sense the lord chief justice of the
king's bench is the principal coroner of the kingdom. Previously to the statute
of Magna Charta a coroner might not only receive accusations against offenders,
but might try them.
CH. XXV.-From the time of the Norman invasion downward, the cities and
towns of England were.vested either in the crown, the clergy, or the barons; that
is to say, persons of one of these classes were the immediate lords of towns, &c.
Those which appertained to the king were of several kinds; for he possessed
some by the original inheritance of his crown, which were termed ancient demesne; and others became his by way of escheat, want of heirs, attainder, or
forfeiture.
From the reign of William I. also, the king was accustomed to let out the
several counties of the realm at a farm or rent, concerted between the crown
and the holder, or else they were committed to custody, the nature of which is
shown in the note on Chapter IV.
When a county was let out at a greater farm than it had been formerly
rated at, the advance money was usually termed crementum, the increase, &c.
The word county, in Latin comitatus, is derived from comes, the earl, a
principal governor of it, to whom the sheriff was anciently a deputy; the term
hundred is supposed to have been introduced by King Alfred, and to signify a
division of country containing ten towns, each of which consisted of ten families
of freeholders; a trething, or trithing, amounted to a third part of a county;
and a wapentake, which is equivalent to a hundred, was so called because the
governor of the district, when he first entered on his office, appeared in the field
on horseback holding a lance, which all the chief men of the hundred touched
with a similar weapon, thereby evincing their unanimity.  (Blackstone, Jacob.)
CH. XXVI., XXVII. -The ancient common law respecting wills was, in
general, peculiarly compulsory; for in the time of Henry II. a person's goods
were to be divided into three parts, of which one went to his wife, another to his
heirs, and a third he was at liberty to dispose of. If he were childless, his
widow claimed half; and if he were a widower with children, they also claimed an
equal portion; and these were termed their reasonable shares, as the expression
is used in the text of Magna Charta.
It was also an ancient custom for the clergy to claim a gift on the decease of
any of their parishioners, called a mortuary, which was intended as a species of




216              NOTES ON THE GREAT CHARTER.
amends to the ecclesiastics for personal tythes, or other duties, which the deceased had forgotten or omitted to pay. The mortuary consisted of the second
best chattel remaining, after the lord had taken out his heriot.
Such were the chief points required in the ancient English testaments; and
if a person died without making any disposition of that part of his property
which he might bequeath, the king, as the general trustee of the kingdom, and
father of the country, was empowered to seize upon it. In process of time this
branch of the prerogative was given to the church, which was done because
spiritual men were supposed to have a better knowledge of what would conduce
to the benefit of the soul of the deceased.
As these ecclesiastics, however, were not accountable to any one for the faithful discharge of their trust, they too frequently abused it; and it appears that,
so late as about 1250, the clergy took the whole residue of the deceased's
estate after the widow's and children's two thirds had been deducted, without
even paying his lawful debts; for which reason, in 1284, it was enacted that the
ordinary should be bound to pay the debts of the intestate so far as the goods
would extend.
The intention of the inventory mentioned in this chapter, was not less to prevent the executor from concealing any part of the property of the deceased, than
to secure the payment of the king's debts.
The following chapter (XXVII.) relates to such persons only as die intestate:
who, according to Matthew Paris, were anciently considered as eternally condemned, because by the canon they were obliged to leave a tenth of their property to pious uses for the redemption of their souls; which he who did not, regarded not his own salvation. There was also no distinction made between one
who died without a will, and a suicide; for the goods of the former were forfeited to the chief-lord, and of the latter to the king. As, however, sudden
deaths might frequently cause intestates, the bishops, in the course of time, received power to make such a distribution from the goods of the deceased as lie
himself was bound to do, under the term of Eleemosyna rationabilia.
CHs. XXVIII., XXIX., XXX., XXXI.-The four chapters which are next
to be considered have one principal aim, the regulation of purveyance, and
the duties to be taken for the maintenance of castles. They were intended to
remedy the heavy oppressions inflicted by the governors of castles upon the surrounding tenants, and even on the military, as well in peace as in war. Some
notice of the evil practice of these castellans has already been given; but previously to entering upon a particular illustration of the text in this place, it will be
proper to give some notice of the nature of purveyance in general. The term
itself is derived of the French pourvoir-to provide-and its legal acceptation
was a providing for the king's household by his officers, who exercised his prerogative of buying provisions, &c., at a certain rate, to the preference of all
others, and even without the owner's consent. It embraced also the power of
impressing the horses and carriages of the subject to execute the king's busi



NOTES ON THE GREAT CHARTER.                       217
ness on the public roads, in, the conveyance of timber, baggage, &c., however
inconvenient to the proprietor, upon paying him a settled price.
Lord Coke, in commenting on the first of these chapters, says, that the constable of a castle had no right to make purveyance at all; though the fortress
were to be kept for the defence of the realm, as it might be taken for the houses
of the king and queen only. "Constables," says the author of the Mirror,
"should defend the rights of all persons around them; for there is no difference
between taking ill care of them, and robbery-the which is this seizing of their
horses, provisions, merchandise, carriages, lodging, or any kind of their goods."
Castle-guard was an essential part of knight's service, but it did not extend
to the fortress of any other than the peculiar lord, nor even to that if it were
alienated; and the part to be watched, as a door, tower, bridge, or sconce, was to
be specified in the tenure. The duty of watching, however, might be discharged
either by the tenant or his deputy; but though there was not any certain term
ordained by law for the performance or duration of it, the tenant was to receive,
says Littleton, Lib. II., ch. iv., sect. 3, a reasonable notice, when his lord hears
that the enemies will come, or come into England; and Lord Coke adds, that he
was not bound to attend until such notice was given. If any damage happened
to the fortress from careless keeping, the lord was entitled to distrain for it, and
recover satisfaction from his tenant.
The wood is protected on the ground, that being part of the subject's inheritance, it could therefore no more be taken than the inheritance itself.
Cu. XXXII. —The prerogative mentioned in this division of Magna Charta,
that the sovereign should hold the lands of a felon for a year and a day, exists
also in the French and Danish laws. The ancient custom was that in detestation of the crime committed, the felon's property, if it were held of a subject,
was to be destroyed-as the houses to be thrown down, the gardens extirpated,
the woods eradicated, and the meadow-land ploughed up-this was termed
waste, and of right belonged to the king as part of the felon's forfeiture; but for
the common benefit the lords of estates were afterward contented to resign such
lands to be retained by the king for a year and a day, in consequence of which,
waste was omitted in this chapter of Magna Charta, and no waste was to be
made after they returned to the lord of the fee. The word felony in this chapter
signifies that kind which is punished by death, though nearly all felonies carry
with them forfeiture of estates, and thus Sir William Blackstone supposed the
word to have been derived of the Teutonic terms fel, an estate, and ion, the
price or value-that is to say, the consideration for which the land has been
resigned.
CH. XXXIII.-The intent of this brief fragment of the old common law was
to prevent any persons from appropriating to themselves a fishery of any part
of the river Thames which was common property.
Wears are large dams made across rivers for the taking of fish, or the conveyance of water to a mill; and the peculiar kind mentioned in the text, called
Kydells, were dams having a loop or narrow cut in them, and furnished with
10




218               NOTES ON THE GREAT CHARTER.
wheels and engines for catching of fish. They are now called kettles, or kettle
nets, and are still in use on the sea coasts of Kent and Cornwall.
CH. XXXIV.-The writ mentioned in the text is of that class properly
termed writs of right, its ancient name of Prcecipe in Capife, being derived from
the first words of the instrument.
The chief intent of the present chapter appears to be to prevent any false
transfer of property under color of this writ, from one lord to another, by which
the former lost both his fee and his tenant's services. The writ of right should
be first brought into the court baron of the lord of whom the lands are held, but
if he do not hold any, or have waived his right, then it might be brought into
the king's. As in this instance also it was sometimes falsely pretended that a
lord had waived his right, the present chapter of Magna Charta restrains any
improper use of the writ Proecipe, by which a lord might be dispossessed of his
right of court of jurisdiction over his tenants.
CH. XXXV.-Two peculiar kinds of cloth are mentioned in this division of
Magna Charta: halberjects, or haubergets, and russets. The first was a kind of
very coarse and thick mixed English cloth, of various colors, sometimes used
for the habits of monks; and its name was probably derived from the German
words al, all, or haltz, or hals, the neck, and bergen, to cover. Russets were
also a monastic dress, made of an inferior cloth, sometimes spun by rustics, and
dyed by them of a dull reddish hue, with bark. John de Neville, in the year
1386, ordered by his will that his coffin should be attended by twenty-three
paupers in russet cloaks, bearing torches, and carried by as many more in cloth
of russet wool, bearing a red cross. The name of this material is doubtless derived of the Latin russus, a kind of red.
CH. XXXVI.-The intent of this short but important chapter, was to prevent
the long imprisonment of a person charged with a crime, without examining his
guilt or innocence. " For the intent of imprisoning such," says Lord Coke, " is
only for their security, that they may be duly tried." There is a striking similarity between this division of the great charter, and the act of habeas corpus, of
which it may, in some measure, be considered as the ancient prototype; for the
purpose of each was to bring an accused person to trial without an extended
confinement. The writ of inquisition or inquiry mentioned in the text, was denominated Odio et Arid of hatred and malice, and was anciently called Breve de
bone et Affalo-the writ concerning good and evil, from those words appearing
in it; and it was assigned by the common law to any imprisoned person, to prevent his remaining in prison until the arrival of the justices in Eyre, when he
should be tried. " The former was available," says Lord Coke, "for the most odious
cause, even for the death of a man, which, without the king's writ, could not be
bailed; but in that instance a writ of inquisition was issued to the sheriff of the
county, that he should assume the holding of a court of pleas of the crown, and,
in full county, by the oath of true and lawful men, inquire whether the accused
person were guilty of hatred and malice; unless he had been previously indicted
or called before the justices in Eyre, because then his accusation became matter




NOTES ON THE GREAT CHARTER.                      219
of record, against which this writ could not stand, being grounded on a surmise.
The latter writ mentioned above, was issued when any person was committed to
prison for the death of a man, and was addressed to the justices of jail delivery.
It set forth that " if N, taken and detained in prison for the death of M, be willing
to place himself upon his country for good and evil, and for this occasion, and
for no other, is detained in the same, and not by any special mandate of ours,
then let N be delivered from the prison aforesaid, according to the laws and
customs of England." Without this writ the justices of jail-delivery would not,
anciently, proceed to trial. This statute was altered and amended by three
others, passed in the reign of Edward I.; and in 1354, the 28th of Edward III.,
chapter ix., the writ de Odio et Acid was taken away, because the sheriffs of
counties made inquests for the indicting of the people, and then took fines and
ransoms for their delivery, without ever bringing them before the king's justices.
Lord Coke, however, observes that it was enacted in 1237 that all statutes contrary to Magna Charta should be void, on which account the writs still remained.' And therefore," adds he, "the king's justices in general have not suffered the
prisoner to remain long in prison, but have speedily brought him to trial at
their next coming." This practice is also commanded and described in the
statute of Gloucester, 6th Edward I.
CH. XXXVII.-There are five different species of tenures mentioned in
this division of the great charter, one of which-military tenure-has already been sufficiently described. Concerning the remaining four, it will be
proper to give some explanation, previously to considering the intent of the
statute itself.
Fee farm is when the lord of an estate, on creation of a tenancy, reserves to
himself either the rent for which it was before let, or was reasonably worth, or
at least a fourth part of the value, without any extraordinary services.
The term socage is derived by some from the old French word soc, a ploughshare, and signifies a portion of lands held by tenure of certain inferior offices
in husbandry, or any conventional services that were not military. It was anciently the most popular English tenure, and was of so wide an extent, that
Littleton states that all the tenures which were not held by knights' service,
were held by socage.
Tenure by burgage bears a very close resemblance to socage, and it is defined to be where the king or any other person is lord of an ancient borough, in
which tenements are held by a rent certain; whence it has been called a species
of townz socage, as common socage is generally rural.
Petit or petty serjeantry consisted, according to Littleton, in holding lands
of the king by the service of giving him some small weapon of war, as a bow, a
sword, a lance, an arrow, &c., as it is stated in the text of Magna Charta; and
hence, as it was the payment of a certain rent, it has also been considered as a
species of socage.
The intent of the present chapter of the great charter, was to prevent the
king from claiming, by virtue of the tenure of petty serjeantry, which could be




220              NOTES ON THE GREAT CHARTER.
held of him only, the profit attached to the wardship of the heir, and his lands.
The famous statute of the 12th of Charles II., rendered this portion of the great
charter obsolete, by taking away wardship and most of the feudal tenures; although the honorary services belonging to grand serjeantry were not wholly
abolished by it.- Coke-Blackstone-Statutes at Large.
CH. XXXVIII.-The expression used in the 38th chapter, to be put to his
law, is equivalent to putting a person upon his oath, which is the medium furnished him by the law, of proving himself innocent of any charge. The trials
which were anciently used by the Saxons were by wager of law, by ordeal, and
by jury; of which the first and third properly belong to the present chapters,
the trial by ordeal being referable to the 54th division of the great charter.
The wager of law received its name from the similarity it bore to that proof
which is called the wager of battle; for as in the latter instance the defendant
gave a pledge or gage to try the cause by combat, so in the former he put in
sureties, or vadios, that at a certain day he would take the benefit which the
law had provided him.
The expression wager is derived either from the old French gager, to pledge,
or from the German waegen, to attempt anything dangerous. Before, however,
the wager of law could be demanded of the defendant, the accuser was obliged,
beyond his own declaration, to produce his secta, suit, followers, or witnesses,
whose testimony was to be consistent, and by whom a probable case was to be
made out.
When the charge was complete, and the defendant had given security to
make his law, he came into court with eleven of his neighbors, and, standing at
the end of the bar, was asked by the secondary whether he would wage his law,
and admonished by the judges of the danger of a false oath. If he persisted, an
oath similar to the following form was administered to him: " Hear this, ye
justices! That I do not owe to —    the sum of -., nor any penny thereof, in manner and form as the said      hath declared against me, so help
me GOD!"  The defendant's eleven neighbors or compurgators then avowed,
upon their oaths, that they believed in their consciences that he had spoken the
truth; thus, whilst he was sworn to faithfulness, they were sworn to declare as
faithful a belief. Previously to these oaths being administered, the plaintiff was
thrice called into court; if he did not appear, he was nonsuited, though he might
bring a new action; but if he appeared, and the defendant, &c., made the oaths,
his claim was barred forever, the wager of law being equal to a verdict against
him. This species of trial was never permitted but in cases where the defendant bore a fair and irreproachable character; and it is supposed to have had its
original in the Mosaical law mentioned in Exodus xxii. v. 10, 11. It is also to
be traced in the legal codes of most of the northern nations; and its intent was,
that an innocent man of good credit might find a remedy when he was overborne by a multitude of false witnesses.
CH. XXXIX.-Sir Edward Coke, in commenting upon this chapter, shows
that the evils from which the law of the land are to protect any person, are




NOTES ON THE GREAT CHARTER.                       221
recited in the order in which they most affect him; as, firstly, loss of liberty"no free man shall be taken or imprisoned;" because the freedom of a man's
person is more precious to him than all the succeeding particulars; and the
word " taken," which occurs in this clause, signifies being restrained of liberty
by petition or suggestion to the king or his council.
Secondly, the chapter declares, that none " shall be disseized of his free
tenement, his liberties, or his free customs," meaning that neither the king nor
others shall seize upon any of his possessions, and that a man shall not be put
from his livelihood without answer. Against this law, it seems, even a royal
patent. could not stand. The word liberties has several significations; as the
laws of the realm, privileges bestowed by the king, and the natural freedom
possessed by the subjects of England, for which cause monopolies in general are
against the enactments of the great charter.
The present chapter ordains, thirdly, that none shall be outlawed, exiled, or
in any way destroyed. By outlawry is signified the ejecting of a person by three
public proclamations from the benefit of the law, which, from the time of Alfred
until long after the reign of William I., could be done for felony only, for which
the penalty was death; and therefore an outlaw, being considered as a wolf,
might be slain by any man.
The expression being exiled is equivalent with transportation, and it signifies
to be banished or forced to abjure the realm against one's consent.
The chapter next declares that none shall be, " in any manner, destroyed
contrary to the law of the land;" which Sir Edward Coke interprets to signify
being " forejudged of life or limb, disinherited, or put to torture or death." He
also observes that the words "in any manner " are added to the expression
" destroyed," and to no other in the sentence, because they prohibit any means
being used by which this destruction may be brought about; thus, if any individual be accused or indicted of felony, his goods or lands can neither be seized
into the king's hands, nor granted, nor even promised to another, before his
attainder.
In the original Latin of this charter, the above engagement is followed by
the words "nec super eum ibimus, nee super eum mittemus;" of which the
literal translation is, " nor will we pass upon him, nor commit him," &c.; but,
as the margin of the statutes at large observes, these words do by no means express the sense of the original; and Sir Edward Coke states that they signify
that none shall be condemned at the king's suit, either before the king in his
bench, where the pleas are supposed to be held in his presence, or before any
judge or commission whatever.
The word peer was probably originally derived of the Latin par, an equal,
but was afterward used to signify the vassals or tenants of the same lord, who
were equals in rank, and were obliged to attend him in his courts. They were
also called peers of fees, either because they held their fees or estates under
him, or because they sat in his courts to judge with him of disputes arising upon
fees; and if there were too many in one lordship, the lord selected twelve of




222              NOTES ON THE GREAT CHARTER.
his tenants, who received the title of peers by way of distinction, whence it is
said that juries have been derived.
To be judged according to " the law of the land," is the last privilege secured by the present chapter; which expression Sir Edward Coke interprets to
signify the law of England, in its most extensive sense, binding both the sovereign and the subject; for which cause it is not written in the name of either.
It likewise signifies that none of the foregoing penalties were to be imposed,
but after due process of the common law.
CH. XL. —The intent of this chapter, which in the third great charter of
King Henry III., vide page 140, was added to the preceding, was to abolish those
fines which were anciently paid to delay or expedite law proceedings and to procure favor. Madox, who in his history of the exchequer, chap. xii., gives numerous instances of these fines, states that the counties of Norfolk used to pay
an annual composition at the exchequer, that it might " be fairly dealt with."
By the expression, " to none will we sell," were abolished those excessively
high fines paid for procuring of right or judgment. The words, " to none will
we deny," referred to the stopping of suits or proceedings, and the denial of
writs; and the engagement, "' to none will we delay right or justice," provided
against those delays which were caused by the counter-fines of defendants, who
would sometimes outbid the plaintiff, or by the will of the prince.
The concluding words of this chapter are all which require to be noticed,
namely, "right and justice."  The former, according to Lord Coke, signifies the
law, because it guides as a right line, discovers that which is wrong, is the
best birthright of the subject, and is supposed to allude to the Writ of Right,
which must be given without fine. The passage then ordains that neither right,
nor law, which forms the means of procuring justice, nor justice itself, which is the
end of the law, shall be bought, sold, or denied. Such are the contents of these
important chapters, which admit of the most extensive commentary and analysis;
for it is aptly though quaintly observed by Lord Coke, in concluding his minute
illustrations of these passages: " As the gold-finer will not, out of the dust of
shreds of gold, let pass the least crum, in respect of the excellency of the metall,
so ought not the learned reader to passe any syllable of the law, in respect of the
excellency of the matter."
CHs. XLI., XLII. The protection from " evil tolls " is a security from paying
so large a custom or imposition upon any goods, that the fair profit is lost therein, and the trade thereby prevented.
Lord Coke, in his Commentary on Pleas of the Crown contained in his Third
Institute, chapter 84, shows that there were certain orders of men under a continual prohibition of quitting the realm without the king's previous license;
though by the common law, every one had liberty to go where he would, provided he was under no injunction to remain at home. Some of the persons who
were not to depart without the king's license were peers, because they were the
councillors of the crown; knights, because they were to defend the kingdom
from invasion; all ecclesiastics, because they were confined by a special law, on




NOTES ON THE GREAT CHARTER.                       223
account of their attachment to the See of Rome; and all archers and artificers, lest they should instruct foreigners how to rival the manufactures of England.
By the writ called " ne exeat regno," the sovereign has still the power of confining his subjects within the kingdom, under severe penalties, because every man
ought of right to defend the king and his realm; and to this reason Magna
Charta has a reference, when it states that in time of war persons may be restrained from going abroad "for some short space for the good of the kingdom."
CH. XLIII. The signification of the title Honor, is a more noble sort of
lordship, on which other inferior estates depend, by the performance of certain
services to the superior chief, who is called the Lord Paramount; and his seigniory is frequently termed an honor, not a manor, especially if it ever have belonged to the king or to an ancient feudal baron.  To constitute an honor,
however, it was essential that it should have been originally created by the king,
and that it should be holden of the king; for, though the king might grant it to
a subject, yet if it were assigned to another, it could not be holden of a subject.
The word escheat, which also occurs in this chapter, is derived of the old
French word, escheoir, to return or happen: and it signifies the return of an estate
to a lord, either on failure of issue from the tenant, or upon account of such
tenant's felony. The nature of reliefs paid to the chief lord at the entry of a
new heir, has already been particularly described; and it was usual for honors
to be let out to the sheriffs to farm, in the manner already stated.
CHS. XLIV., XLVII., XLVIII., LIII.-" When a conqueror," says Mr. Lewis,
"settled the economy of a country which he had previously vanquished, it behoved
him, in order to secure his new acquisition, to keep the natives of the country
(who were not his military tenants) in as humble a condition as possible; and
more especially to restrain them from the use of arms; and as nothing could do
this so effectually as the prohibition of hunting and shooting, it became a matter
of policy to reserve this right to himself, or to those of his capital feudatories (the
greater barons), on whom he thought proper to bestow it." On this account
these laws were both instituted and executed with much cruelty; but in Canute's
charter, granted at Winchester, in the year 1016, many of the offences committed, both on the vert and venison, were to be redeemed by fines; and this
restriction extended only to the royal forests. The succeeding century produced a terrible alteration in these statutes; beasts of venery were then considered to belong solely to the king, and the right of taking them to be vested
only in him; and while the Norman government carried these regulations to
their greatest extent, a wide range of country was appropriated for the chase by
the command of William the First, which was then denominated the New Forest. Within these limits, and under the color of forest law, the most horrid
tyrannies and oppressions were exercised; the penalties attached to the destroying a beast within the bounds of a forest, were made almost as severe as taking




224               NOTES ON THE GREAT CHARTER.
away the life of a human being. These -principles, if we credit the assertion of
Matthew Paris, seem to have influenced the mind of John more than that of any
other monarch, for his interdict touching the chase, extended to the winged as
well as to the-four-footed creation. It is not surprising that from such laws as
these the people of England should contend as earnestly for liberation, as from
the other oppressions of the feudal system; and John would have been as reluctant to confirm the charter of forests, as he was to ratify the charter of liberties;
but the former instrument was granted in the ninth year of his successor, King
Henry the Third.
CH. XLV.-Dr. Brady supposes that the office of chief justiciary was originally derived from Normandy, where he believes him to have been the same as
the grand seneschal; in England he had extensive power over all the inferior
officers of the law, took cognizance of all crimes, and was often general, viceroy, and guardian of the kingdom. The annals of Waverley (which are contemporary with Magna Charta), besides the oppression and incontinence of the king
himself, ascribe the anger of the barons to the ill use which Peter, Bishop of
Winchester, who in 1213 was constituted chief justiciary, made of his newly
acquired power, during the absence of King John in France. And this appears
the more probable, because the nobility were from the first extremely disgusted
at his promotion, taking it very ill that a foreigner should be preferred above
them all; and because in the great charter we find the power of the chief justiciary considerably curbed in many instances, and a strong innuendo given, that
the officers of justice had been deficient in the knowledge, or at least in the observance, of the laws of the land. —THOMPsoN's  Magna Charta.
CH. XLIX.-These hostages were first taken about the year 1208, during the
time of the interdict, when King John, fearing that the Pope might absolve all
his subjects from their allegiance, demanded pledges of all the barons, &c., whom
he suspected, to be delivered to him as securities for their future fidelity.
"Many of them," says Dr. Brady, "gave their sons, their nephews, or their
nearest relations to the messengers whom he sent for them. In July, 1211, when
he marched into Wales and subdued it, he received twenty-eight hostages from
the nobles of that nation, who were executed on account of a revolt in the year
following.
CH. LI.-The 51st chapter of John's charter provides for the dismission of
certain alien soldiers, distinguished by the names of foreign knights, crossbowmen, and stipendiaries, who had been probably hired by the king to assist him
against his barons. Even under the feudal system, paid or stipendiary troops,
both national and foreign, were engaged by the monarchs, with the sums given
by such as commuted for their services; and their duties were castle guards,
foreign garrisons, or the protecting of the marches, or borders of the kingdom,
adjoining Wales and Scotland.  Their pay was sometimes out of the privy
purse, or else they were suffered to live at free quarters; and being actually a
party of wandering brigands from all nations, ready to embrace any side for




NOTES ON THE GREAT CHARTER.                         225
hire, they gave rise to that cause of complaint alleged against them in the text,
that they came with horses and arms to the molestation of the kingdom.
As the crossbow, or hand arbalit, is said to have been introduced into
France by the first crusaders, and to have been used early in the reign of Louis
le Gros, which began in 1108, it may probably account for the balistarii, or
crossbowmen, being foreigners.
CH. LII. —This chapter provides for the restoration of any possessions which
had been unjustly seized on during his dispute with the barons; though at the
same time it has a retrospective effect, by referring to such as were seized in
the reigns of Henry II. and Richard I., then remaining in the king's hands.
This demand, however, appears to have been already, in some degree, complied
with; for, about February or March, 1214, John assumed the cross as a protection, and the present clause refers to some estates concerning which pleas had
before been moved, and inquisitions previously taken. The text observes that
all others were to be respited for the usual term of the crusaders, by which
was signified the space of three years, allowed to all who took the cross, during
which time their debts bore no interest, even from the day on which they joined
the crusade; nor could -a crossed debtor be cited before any court, until his
return from beyond the seas. On account of these privileges, and from their
suspicions that King John had assumed the cross only to secure himself and his
possessions, the barons probably inserted that peculiar clause in the text, providing that if he did not go upon the crusade, he would -immediately grant them
their petitions.
CiI. LIV.-The particular species of action indicated in this chapter, is
called an appeal to death, which is of two kinds, murder properly so named,
and manslaughter; these being the only crimes for which an appeal can be
brought for a relation, all others referring to the parties themselves.  The
appeal of death, however, cannot be brought for every relation, but only by a
widow for the death of her husband, and by the heir male for that of his mother
or ancestor, which heirship was extended, by an ordinance of King Henry I., to
the four nearest degrees of blood. The writ of appeal is a natural consequence
annexed to the widowhood of a woman, and is allowed her on account of the
loss of her husband; if, therefore, she marry before or during her appeal, it is
entirely lost; and if after judgment, she cannot demand execution.
The principal value of appeals of murder can hardly be estimated at the
present day; though anciently there were reasons for thus prosecuting offences
rather than by indictment. Blackstone and Barrington suppose that they had
their origin in those times when a pecuniary satisfaction was paid for the expiation of great crimes; and princes were accustomed to pardon even murder,
considering it as homicide, for a certain sum, entitled a weregild, to be paid to
the nearest relation.
An acquittal, in the case of an appeal, protected the party from being afterward indicted for the same offence; and it was provided by the statute of Westminster, ch. xii., that in such a case the appellor or prosecutor should suffer a
10*




226              NOTES ON THE GREAT CHARTER.
year's imprisonment, pay a fine to the king, and make restitution to the defendant for his imprisonment and infamy; which provision was of considerable effect
in discouraging the common use of appeals. If, on the contrary, the appellee
were found guilty, he suffered the same judgment as if he had been convicted
by indictment; the king having no power to pardon him, any more than he had
to permit the payment of the weregild,
CHS. LVI., LVII. —The text of King John's great charter declares, that all
these disputes shall be decided by a threefold law, peculiar to that place to
which they might refer: as the law of England for English tenements; that of
Wales for Welsh possessions; and that of the Marches, for those estates situate
on the borders of the two countries. The term marches is derived either from
the German word marck, a mark, limit, or boundary, or from the old French
marque, signumm; and it signifies the line of distinction between two territories,
considered as enemies' countries, which was anciently the case betwixt England,
Wales, and Scotland. The Welsh marches are situate on the western and
northern sides of Shropshire. They were governed by certain of the nobility
called lords marchers, or marquesses of the marches of Wales, who possessed a
kind of palatine authority in their respective territories, administered justice to
the inhabitants in their own courts, and were gifted with several privileges and
immunities, particularly under certain circumstances, with an exemption from
the royal writ.
The law of Wales, which is also mentioned in this part of the great charter,
refers to that code which was left to the ancient inhabitants, with such parts of
the country as were not taken from them. It consisted of the statutes drawn
up by Howel Dha, king of South Wales, in 940, and his council at " the White
House on the River Taf," which were formed of the ancient laws and customs
of the country, then fallen into decay, amended and increased.
CH. LVIII.-The 58th and 59th chapters of this charter relate to two events in
the life of King John, and his connection with the princes of Wales and Scotland.
In 1211, the lords of the Welsh marches made several heavy complaints to John
against Llewellyn, the great prince of North Wales, concerning his ravages and
incursions into England, and the king, assembling an army, marched through the
whole country, whence, however, he soon returned, with considerable loss. In
1212 he entered Wales, and, as many of the Welsh nobility were of his party,
Prince Llewellyn, who had married Joan, the king's natural daughter, sent her
to him to make terms of peace, which were afterward confirmed between the
prince and the king. Hostages were then given, and Llewellyn promised the
king toward his charges, 20,000 head of cattle and 40 horses. The patent roll of
the 16th of John, 1215, membrane 9, records a warrant for the delivery of certain
Welsh hostages, probably some of those mentioned in the text.
CH. LIX.-John's agreement with Alexander II., king of Scots, which occupies the 59th chapter, refers to the capture of his father William I., in 1173, at
Alnwick in Northumberland, when he covenanted to restore all that he had taken
from England, to do homage for his crown, and give as security the castles of




NOTES ON THE GREAT CHARTER.                       227
Roxburgh, Berwick, Sterling, and Edinburgh. On November 22d, 1200, the same
king did homage to John at Lincoln, and then demanded of him the restoration of
the counties of Northumberland, Cumberland, and Westmoreland, with all their
appurtenances, as his ancient right and inheritance; but as they came to no agreement, William returned discontented into Scotland. But though this claim remained unanswered until the king's death in December, 1214, he had entered into
such a friendly compact with John, as to send his son Alexander over to England,
where he was knighted in 1212. In the civil wars of the barons, they invited
Alexander to join them, after the conclusion of Magna Charta; and in 1216, he
entered England, where Norham Castle was surrendered to him upon terms. As
he marched farther into the country, he took homage of Northumberland, and the
barons of Yorkshire fled to him for protection from John's advancing army, before which, however, he was at length forced to retreat into his own kingdom.
He afterward married Joanna, King John's eldest daughter by his third queen,
Isabella of Angoulgme, at York, on June 25th, 1221.
CH. LX.-The insertion of this clause of the great charter, by which all the
engagements and limitations between the king and his barons, &c., are made
binding on them toward their own dependents, has been sometimes attributed
to John himself. " For," says Dr. Henry, in his History of Great Britain, after
mentioning this probability, "though the great barons were very desirous to prevent the tyrannical exercise of the feudal authority toward themselves, many
of them were much inclined to exercise it in that manner toward their vassals,
and continued to do so after this charter was granted." " This," he continues,
" both encouraged our kings to violate all its limitations, and furnished them
with a ready answer to all the complaints of their barons."  Lord Coke, however, views this clause in a very different aspect, since he says of it: " This is
the chief felicity of a kingdom, when good laws are reciprocally, of prince and
people, as is here undertaken-duly observed." Dr. Lingard, in his History
of England, Vol. II., ch. xiv., page 257, seems to believe that as the great body
of freemen was composed of the subvassals of the immediate tenants of the
crown, the clause was inserted for them, because they had assisted in procuring
the charter itself. By Samuel Henshall, it is asserted that John himself caused
this passage to be included in the articles of the great charter; and it is to be
observed to be the only clause which affects the whole body of the people.
CH. LXII. —After the extended and violent hostilities, between the king and
his peers, the great charter properly contains one section, as an act of oblivion
and reconciliation; which it may be observed, has so much of a retrospective
view, as to commence at the preceding Easter, April 29th, 1215. The peace
was actually concluded on Friday, June 19th, and it was announced to the king's
party by the following letter, which is entered on the patent rolls, and which in
referring to the fines and tenseriae,-a military tax or contribution-may be
thought to have some allusion to the taking away of unlawful amerciaments,
provided by chapter lv. of King John's charter.
"The king to Stephen Harengod, &c. Know ye, that a firm peace was, by




228              NOTES ON THE GREAT CHARTER.
the grace of God, made between us and our barons, on the Friday next after the
feast of the Holy Trinity, at Runnemede near to Staines, and that there we took
homage of the same. Wherefore, we steadfastly command and instruct you, as
ye have respect unto us, and our honour, and the peace of our kingdom, that
you shall no further disturb, nor do any evil to our barons, nor to others, for
the future; nor permit any occasion to be taken from the former discord between us and them. We also command you, that of the fines and tenseriae
taken by us on account of that discord, if any remain to be paid after the aforesaid Friday, nothing shall be taken. And the bodies of the prisoners, and
hostages, and such as are detained on account of those wars, or fines, or tenserie, aforesaid, shall be liberated without delay. All the aforesaid shall be done
as ye have respect to our person. And in testimony of this matter we send
to you: Witness myself, at Runnemede, the 18th day of June, in the Seventeenth year of our reign."




CHAPTER V.
THE RISE OF PARLIAMENTARY REPRESENTATION.
SUFFICIENCY OF MAGNA CHARTA-NECESSITY OF FURTHER GUARANTEES-POWER
OF PARLIAMENT IN THE REIGN OF JOHN-ABSENCE OF THE REPRESENTATIVE
PRINCIPLE-HENRY'S RATIFICATION OF THE CHARTER OF KING JOHN —BLENDING OF THE NORMAN AND SAXON RACES —HENRY'S MORTGAGE OF THE KINGDOM
TO THE POPE-THE GOVERNMENT. INTRUSTED TO TWENTY-FOUR BARONS-THE
CIVIL WAR-DE MONTFORT'S PARLIAMENT-OVERTHROW OF DE MONTFORTFIRST CONSTITUTIONAL HOUSE OF COMMONS —ACCESSION OF EDWARD I.-HIS
CONFIRMATION OF THE CHARTERS-STATUTE DE TALLAGIO NON CONCEDENDOFINAL SETTLEMENT OF PARLIAMENTARY REPRESENTATION.
THE Charter of King John, had its provisions been faithfully
executed, would unquestionably have been found sufficient to ensure the safety of the subject and the quiet of the kingdom. As
yet the refinements of a high civilization were unknown, and a
complicated system of government could only have resulted in
confusion. To secure mankind in the possession of life, liberty,
and property, are the sole objects of all government; and that
form is the best for every people, which in its peculiar circumstances is the best adapted to attain this end.  Ideal systems for
the government of mankind are the dream of the philosopher, but
the Republic of Plato and the Arcadia of Sydney only serve to
show what man's condition might be if man were not what man is.
Magna Charta was sufficient for its time, so far as any mere agreement could suffice; but it is not in human nature to surrender
power without a desperate struggle, and the successors of King
John were always ready to evade the plainest promises of an instrument which they alleged was only binding on the monarch who
had granted it. We are not, then, to imagine that the usurpations
and oppressions of the crown ceased with the giving of the char



230      RISE OF PARLIAMENTARY REPRESENTATION.
ter. Far from it.' It was in consequence of royal wrongs that
the necessity of further guarantees of rights came t6 be manifest
to every class in the community, and that the people were from
time to time compelled to wrest from their sovereigns some part
of the functions of government, until the crown became the weakest of the three estates. The great advantage acquired through
the charter to the cause of freedom was this, that the people's ordinary rights were clearly stated and distinctly guaranteed, and
that the right of revolution and rebellion was acknowledged to
exist when other rights were outraged by the crown. The hope
to be derived from these acknowledgments and recognitions lay in
this, that a free parliament existed, jealous of its liberties and
watchful of the sovereign, ready, as occasion offered, to restrain his
power and to provide securities against the overweening claims of
his prerogative.  With such an institution, it could hardly be a
matter of doubt that checks would be from time to time set on
royal power, and that new agencies of government would be created which must in the end destroy the autocratic claims of English
sovereigns, and in their stead erect a commonwealth of freemen.
Some, perhaps, of the brave barons who took part in the long contest, of which Runnymede was but the first great battle ground, saw
in the objects they attained a glimmering of something greater for
posterity than they had yet imagined for themselves; but these
were at the best but vague hopes. To overthrow consolidated and
prescriptive power is no slight task; and it was only long-continued and repeated wrongs which educated them to know and guard
their rights. Through the long term of years which intervened
between the death of John and the accession of the Stuarts, there
is little to be seen but a succession of vain contests, in wild civil
wars, with now and then a step made or a step lost in the development of constitutional government. Freedom blooms more slowly
than the century plant of South America; and once destroyed, it
cannot be restored to life and vigor but by copious watel;ings of
blood. The moral of our illustration needs no exposition.
We have said that in the Parliament of England, and the recognition of its rights of legislation and taxation, lay the chief
hope of the people. Yet the Parliament as it existed in the reign




RISE OF PARLIAMENTARY REPRESENTATION.          231
of John was but the shadow of a representative assembly. It is
true that Magna Charta promises that the greater barons shall be
summoned to Parliament by special writ, while all other tenants
in chief are to be summoned in gross, and that this distinction of
the barons into greater and lesser, obscure as it is, may be the first
hint of a representation of the commons. But yet none were admitted to the parliamentary assembly but tenants in chief of the
crown, whether their tenures were great or small. All subfeudatories were excluded. Parliament was, therefore, less a national
assembly than the feudal council of the immediate vassals of the
king. We are now briefly to trace its gradual development into
the present Parliament of England.
The long and weak reign of Henry III., from 1216 to 1272,
with all its indiscretions, was eminently favorable to the progress
of free institutions. Had the reign of such a prince as Edward I.
succeeded that of John, the charter might have been suppressed;
but Henry's long minority, his folly, and his weakness gave the
barons every opportunity to strengthen and confirm the privileges
they had won from John.  Moreover, the continued civil war
which soon arose between the barons and the king, revealed the
fact that either side, in order to success, must gain the affections
of the commons. Hence the commons were invited to take part
in Parliament by chosen representatives, and in the following reign
the principle of popular representation came to be a fundamental
principle of the English constitution.
At the accession of this prince in 1216, the Earl of Pembroke,
the great advocate of the popular cause, was by the Parliament,
appointed governor of the kingdom, and through his influence the
charter of King John was revised and confirmed. In 1223, Henry
was declared of age, and being utterly incapable of governing the
kingdom, the supreme power was entirely exercised by his justiciary, Hubert de Burgh. In 1225, when war with France broke
out, De Burgh was forced to apply to Parliament for an extraordinary aid; and one-fifteenth of all movables was granted by the
barons, on condition that the king should now, in his majority, ratify
and confirm the charters. This was done.2 But the war terminating in disaster, Parliament refused to grant another aid, and




23 2     RISE OF PARLIA3MENTARY REPRESENTATION.
popular indignation hurled the justiciary from power. During
the discon tents which followed the disaster of the English forces,
Henry added greatly to the disaffection of the people by marrying
a French princess, Eleanor of Provence, and by introduction
into the chief places of the court and kingdom of her foreign
relatives.  Enraged at being governed by a band of foreign favorites, the barons more than once took arms against the king, who
just as often swore to dismiss the obnoxious persons, and as often
broke his oaths. The spirit of dissatisfaction reached its culminating point with the defeat of Henry in the French war he had
undertaken contrary to the advice of Parliament, which forthwith
peremptorily refused further supplies. The loss of the king's
French possessions proved of immense advantage to England. The
king could no longer threaten one part of his dominions with a
foreign force to be brought from the rest: the barons, separated
from their continental associations, now regarded themselves as
English peers rather than as Norman nobles; and the distinction
of the Normans from the English began gradually to disappear.
"The two races," says Macauley, " so long hostile, soon found that
they had common interests and common enemies; both were alike
grieved by the tyranny of a bad king-both were alike indignant
at the favor shown by the court to the natives of Poitou and Aquitaine. The grandsons of those who had fought under William,
and the great-grandsons of those who had fought under Harold,
began to draw near to each other in friendship;" and, as the great
charter had been the first pledge of their reconciliation, so the
formation of a representative government was the consummation
of their identity.
After his serious repulse, Henry endeavored to conduct his government without advice or aid from Parliament, but his necessities
compelled him in 1253 to meet the barons, who solemnly but firmly
asked for a redress of grievances. The clergy seconded the barons.
When they assembled in Westminster Hall, the bishops and abbots in
their robes went in a solemn procession to the king with lighted
tapers in their hands, and the archbishops then pronounced the
fearful sentence of excommunication against whoever should have
violated the great charter. Terror-stricken, the weak-minded king




RISE OF PARLIAMENTARY REPRESENTATION.          233
exclaimed, " So help me God, I will keep the charters inviolate, as
I am a man, as I am a Christian, as I am a knight, as I am a king!"
It was in vain. The king's devotion was as temporary as it doubtless was sincere; and his imprudence now led him to an act which
might have brought about the ruin of his family, but fortunately had
the happier result of furnishing the occasion for establishing the representative assembly of the English Commons. At the instigation of
Pope Innocent III., Henry undertook the conquest of Sicily for his
son Edmund, and the pope supplied him with the sum of 14,000
marks on a mortgage of his kingdom. Mortgages to popes in those
days were no empty form; for the successors of St. Peter were good
stewards of the patrimony of the apostolic fisherman.  When
Sicily was conquered, the then reigning pope, Alexander IV.,
demanded the immediate completion of their contract under threat
of excommunication of the king, and interdict of the whole kingdom. Driven to despair, he called upon his Parliament to aid him
in the payment of his debt. They were astonished at the impudence of the demand that they should pay so vast a debt, which
they had never authorized him to contract; and they insisted that a
committee should be appointed by the Parliament to administer the
affairs of the kingdom, which their sovereign obviously was unfit
to govern. The king consented, and the Parliament appointed
twenty-four persons to conduct the government; and it was furthermore resolved, that four knights should be elected in each
county to represent the grievances of their constituents in the
next Parliament.  But the barons were determined on more
sweeping reforms. They had learned by long experience how little
confidence could be reposed in kingly faith or prudence, and they
determined once for all to cleanse the kingdom  from  the corruption which had grown upon it. For the sake of greater efficiency,
Simon de Montfort, the ruling spirit among the barons, caused
twelve instead of twenty-four to be appointed to the task of reformation, who forthwith dismissed the whole of the king's officers
and advisers. The king himself became a cipher in the state; and
in a monarchy, as Mr. Hallam justly says, a king divested of
prerogatives by his people, soon appears even to themselves an injured party   The decision and promptness of De Montfort and




234      RISE OF PARLIAMENTARY REPRESENTATION.
the twelve barons doubtless carried with it an air of usurpation
which strengthened the hands of the the royalists; and Prince
Edward flew to arms to vindicate the lost prestige of royalty. He
was speedily defeated, the king prince were taken prisoners,
and de Montfort, who had no desire to found a tyranny, determined to summon a parliament which should give a constitutional
sanction to the acts he was determined to accomplish. The royalists of course were chiefly in the ranks of the nobility; while the
citizens of London, and the commons generally, were enthusiastic
for the cause of Leicester. It was obviously the policy of Leicester to call the citizens and commons to his aid. Writs were
therefore issued, ordering the Sheriff to elect and return two
knights for each county, and two burgesses and citizens for each
borough and city respectively; and thus the principle of representation was established in the English Government, and the foundation of the present House of Commons laid.'
The conduct of the commons in this Parliament was a striking
proof that the people of a country are always more ready to endure
the government to which they are accustomed, while it is in any
degree tolerable, than to fly into the uncertainties of revolution.
Much as they had suffered at the hands of Henry, and deeply as
they sympathized with Leicester, they had no desire to overturn
the throne or change the constitution of their country. On the contrary, while they were firm in their demand for the redress of grievances, and stipulated that the chief authority should rest with
Leicester, yet they no less steadily demanded the restoration of the
king and the enlargement of the prince. Their wishes were accomplished; and the first result was that Prince Edward, making his
escape, gathered an army, overthrew Simon, the son of Leicester, in
the battle of Kenilworth, and turning to meet Leicester, who was
hastening to the succor of his son, surrounded and destroyed his
army, giving no quarter to any rank. Leicester himself was slain,
but long lived in the affections of his countrymen, especially of the
commons, as the champion of liberty and equal rights. He was for
generations known among them as Sir Simon the Righteous; and
though he died excommunicate, the popular credulity believed that
notable miracles were wrought at his tomb.




RISE OF PARLIAMENTARY REPRESENTATION.          235
For once the king now acted with prudence. Conscious of his
weakness, notwithstanding the late triumph, he appears to have
shown no disposition to trample on the charters or to reassert those
ancient claims of prerogative which would have plunged the king.
dom once more into revolt. Measures of retribution against the
late rebels were left to Parliament; but the rigorous acts of this
assembly, consisting as it now did of those barons only who
had been the steady partisans of Henry, produced such disturbances that Henry wisely overruled them. Nor did his moderation end here. His most powerful partisan, the Earl of Gloucester,
taking umbrage at some measures of the court, rose in rebellion
and seized the tower of London. The disturbance was, by a mild
course, soon brought to an end; the earl was freely pardoned, and
the kingdom was restored to quiet. But the king was sensible that
he must now concilitate the commons also to his cause, if he would
hold his kingdom in tranquillity; for with them remained the balance of power in any discord between him and the barons. He
accordingly determined by the advice of his council to convene a
Parliament on the plan of Leicester, in which counties, cities, and
boroughs4 should be duly represented: and this body, from which
many good laws-called the Statutes of Malbridge-emanated, having
been assembled by the free will of the king and barons, with a distinct concession of a right of parliamentary representation to the Commons, is justly regarded as the first body of constitutional English
legislators, in which the House of Commons was a constituent part.
During the rest of Henry's reign he lived in peace; and having
in a period of bloodshed and rebellion, reaped the bitter fruits of
violence and usurpation, he at length enjoyed in quiet, honor, and
security, the blessings which could only have been won for him and
his distracted kingdom by a course of prudence, moderation, and
conciliation. But the fiery Edward who succeeded him was made
of sterner stuff than the weak Henry; and in other circumstances
this great sovereign might have swept away the limitations of the
royal power which had been made during the last two reigns. But
his own energy embarrassed him. His victorious wars in England
and Scotland speedily impoverished his treasury; and when affairs
upon the Continent demanded an immediate expedition into France,




236      RISE OF PARLIAMENTARY REPRESENTATION.
Edward, who had never yet confirmed the charters of the previous
reigns, resorted to measures of the most violent nature to provide
the necessary funds. Without the consent of Parliament he levied
tallages on all personal property, both of barons and commons, made
an arbitrary tax on wool, and demanded of merchants loans equal to
the full value of their cargoes. A strong spirit of resistance was
aroused. Henry Bohun, Earl of Hereford, and Roger Bigod, Earl
of Norfolk, resisted the exactions of the king and so intimidated
the officers of the crown as to compel them to desist. They even
refused to allow troops to be mustered for the expedition into
France, alleging that the levy was unlawful, they not being bound
to render military service otherwise than in attendance on the royal
person, and declaring that they would not go unless the king himself went.  Indignant at this unexpected opposition to his will,
Edward is said to have exclaimed to Hereford, " By the eternal
God, sir earl, you either go or hang!" " By the same oath, sir king,"
said the undaunted noble, " I will neither go nor hang!" With this
defiance the two earls departed to their castles and many of the
barons followed  their example.  Edward's affairs admitted no
delay; and having endeavored to win over the populace of London,
and to conciliate the clergy to his cause, he departed into Flanders.
Thereupon the clergy sided with the country, and ere long the warlike Edward was by force of circumstances driven to subscribe a
confirmation of the charters of the previous reigns; and moreover to
assent to the important Statute de tallagio non concedendo, which provided that no tallage or aid should be levied without the consent
of the lords and commons assembled in Parliament; that in future
no seizure of wool, hides or other merchandise should be made to
the crown, and that no tolls or customs should be levied contrary
to the charters.  The better to secure the observance of these
important provisions, it was enacted that copies of the charters
should be sent to the sheriff, and justices in Eyre; that they
should be publicly read id the cathedrals and sheriff courts, accompanied by a solemn sentence of excommunication against all who
should presume to violate their sanctity; and that knights should
be indifferently chosen in every shire to inquire into every abuse
and infringement of these statutes, and to grant redress where it




RISE OF PARLIAMENTAiRY REPRESENTATION.         23'7
was not otherwise provided by law. From this time forth we may
consider that the right of parliamentary representation was so
firmly established in the English constitution, that no tax could be
assessed on any portion of the people, lords or commons, laity or
clergy, without the express assent of the class or order to be taxed;
and it was fortunate that this admission was conceded by so powerful and great a prince as Edward. Hitherto concessions from the
crown had been extorted from unwise and weak kings; so that even
in the people's own minds there was still a doubt whether those
solemn acts were permanently and unalterably established. But
when they were ratified by Edward, who, by his contemporaries no
less than by posterity was admitted to be one of the most wise, sagacious, powerful, and determined monarchs of his age, no doubt
remained that they would stand forever.6
" From this period " says Lord Brougham, " we may truly say,
that the constitution of Parliament, as now established, took its origin  and however that body may have occasionally had to struggle
for its privileges, how often soever it may have submitted unworthily to oppression, how little soever it may have shown a determination to resist cruelty and injustice, and even the disposition to
become the accomplice in such acts, we must allow that, generally
speaking, it has ever since the end of the thirteenth century, formed
a substantive and effective part of the constitution, and that the
monarchy then assumed the mixed form which it now wears.
" The English nation," continues the same noble author, " ought
piously to hold in veneration the memory of those gallant and virtuous men who thus laid the foundation of a constitution to which
they are so justly attached. The conduct of the barons in John's
reign is indeed above all praise, because it was marked by as much
moderation and wisdom as firmness of purpose and contempt of
personal danger." " But to withstand the measures of Edward, a
prince unequalled by any who had reigned in England, since the
Conqueror, for prudence, valor and success, required a far more
intrepid patriotism; " it is therefore to the sacred names of Henry
Bohun, Earl of Hereford and Essex, and Roger Bigod, Earl of
Norfolk, that we must award the meed of praise as the greatest
patriots England has produced: and it is to the reign of Edward




238       RISE OF PARLIAMENTARY REPRESENTATION.
that we must refer the firm and final settlement of the great principles of constitutional liberty in England.6
It is easier to lose than to win back.  From  the conquest by
the Normans to the confirmation of the charters by king Edward
I., and the enactment of the statute de tallagio, two hundred and
thirty years of wrong, oppression, usurpation, rebellion, civil discord, and intestine war were suffered; and nearly four hundred
years of contest and vicissitude had yet to pass, before the rights so
long acknowledged  and so clearly understood, were to be quietly
enjoyed:-a lesson which the freemen of all nations should not fail
to bear in mind when they are tempted, on whatever grounds, to
sacrifice their liberties to a supposed necessity.
NOTES.
1. Tone of English Government from Al~agna Charta to Henry VI.-A1though the restraining hand of Parliament was continually growing more effectual,
and the notions of legal right acquiring more precision from the time of Magna
Charta to the wars under Henry VI., we must justly say that the general tone
of administration was not a little arbitrary. The whole fabric of English liberty rose step by step, through much toil and many sacrifices; each generation
adding some new security to the work, and trusting that posterity would perfect
the labor, as well as enjoy the reward. A time, perhaps, was even then foreseen, in the visions of generous hope, by the brave knights of Parliament, and
by the sober sages of justice, when the proudest ministers of the crown should
recoil from those barriers which were then daily pushed aside with impunity.
There is a material distinction to be taken between the exercise of the king's
undeniable prerogative, however repugnant to our improved principles of freedom, and the abuse or extension of it to oppressive purposes. For we cannot
fairly consider as part of our ancient constitution, what the Parliament was perpetually remonstrating against, and the statute book is full of enactments to
repress. Doubtless the continual acquiescence of a nation in arbitrary government, may alternately destroy all privileges of positive institution, and leave
them to recover, by such means as opportunity shall offer, the natural and imprescriptible rights for which human societies were established. And this may,
perhaps, be the case at present with many European kingdoms. But it would
be necessary to shut our eyes with deliberate prejudice against the whole tenor
of the most unquestionable authorities, against the petitions of the commons,




RISE OF PARLIAMENTARY REPRESENTATION.                   239
the acts of the legislature, the testimony of historians and lawyers, before we
could assert that England acquiesced in those abuses and oppressions, which, it
must be confessed, she was unable fully to prevent.-HALLAM's  Middle Ages,
vol. iii. p. 146.
2. Hume, on Charter of Henry III.-" Thus these famous charters were
brought very nearly to the shape in which they have ever since stood; and
they were, during many generations, the darling of the English nation, and
esteemed the most sacred rampart to national liberty and independence. As
they secured the rights of all orders of men, they were anxiously defended by
all, and became the basis, in a manner, of the English monarchy, and a kind of
original contract, which both limited the authority of the king, and ensured the
conditional allegiance of his subjects. Though often violated, they were still
claimed and recalled by the nobility and people; and as no precedents were
supposed valid that infringed them, they rather acquired than lost authority
from the frequent attempts made against them in several ages by regal and arbitrary power."
3. Leicester's Parliament.-The commencement of the year 1265 is rendered
forever memorable by a measure destined to have the most important influence
on the development of the British constitution; and which, as it has been elegantly expressed, has " afforded proof from experience that liberty, o.der, power
and wealth are capable of being blended together in a degree of harmony which
the wisest men had not before believed to be possible." Hitherto the great councils of the nation had consisted only of the prelates, barons, and tenants in chief
of the crown; but Leicester, in the summons for a parliament at this time, directed the "sheriffs to elect and return two knights for each county, two citizens for
each city, and two burgesses for each borough in the county; thus establishing
the principle of representation, and giving the people of the towns, who had
hitherto been taxed at will, a share in the legislature of the realm. By a fortunate chance also, they were allowed to sit along with the knights of the shire and
not in a separate chamber; a circumstance which greatly contributed to give
them dignity and importance. That Leicester could have foreseen the full effects
of what he was doing is not to be supposed. The measure was one which, in the
natural course of things, must inevitably have occurred within a few years; deputies for the towns had sitten for the last century in the Cortes of Spain; towns
were everywhere rising into importance, and becoming of too great weight in
the balance of states to be any longer subject to the arbitrary power of princes
and nobles. Leicester may, doubtless, have seen much of this, but his probable
motive was merely to the parliament members who he knew would be wholly
devoted to himself, and the ready agents of his will."-KEIGHTLEY'S  History of
England, vol. i. p. 221.
4. Admission of Borough Representatives to Parliament.-Separation of the
two Houses.-There is no great difficulty in answering the question why the




'240      RISE OF PARLIAMENTARY REPRESENTATION.
deputies of boroughs were finally and permanently ingrafted upon Parliament
by Edward I. The government was becoming constantly more attentive to the
wealth that commerce brought into the kingdom, and the towns were becoming
more flourishing and more independent. But, chiefly, there was a much stronger spirit of general liberty, and a greater discontent at violent acts of prerogative, from the era of Magna Charta; after which authentic recognition of free
principles, many acts which had seemed before but the regular exercise cf
authority, were looked upon as infringements of the subject's right. Among these
the custom of setting tallagei at discretion would naturally appear the most intolerable; and men were unwilling to remember that the burgesses who paid them
were indebted for the rest of their possessions to the bounty of the crown. In
Edward I.'s reign, even before the great act of confirmation of the charters had
rendered arbitrary impositions absolutely unconstitutional, they might perhaps
excite louder murmurs than a discreet administration would risk. Though the
necessities of the king, therefore, and his imperious temper, often led him to
this course, it was a more prudent counsel to try the willingness of his people,
before he forced their reluctance, and the success of his innovation rendered
it worthy repetition. Whether it were from the complacency of the commons
at being thus admitted among the peers of the realm, or from a persuasion that
the king would take their money if they refused it, or from inability to withstand
the plausible reasons of his ministers, or from the private influence to which the
leaders of every popular assembly have been accessible, much more was granted
in subsidies, after the representation of the towns commenced, than had ever
been extorted in tallages.
It has been a very prevailing opinion, that Parliament was not divided into
two houses at the first admission of the commons. If by this is only meant that
the commons did not occupy a separate chamber till some time in the reign of
Edward III., the proposition, true or false, will be of little importance. They
may have sat at the bottom of Westminster Hall, while the lords occupied the
upper end. But that they were ever intermingled in voting, appears inconsistent with likelihood and authority. The usual object of calling a parliament
was to impose taxes; and these, for many years after the introduction of the
commons, were laid in different proportions upon the three estates of the realm.
Thus, in the 23 E. I., the earls, barons, and knights gave the king an eleventh,
the clergy a tenth, while he obtained a seventh from the citizens and burgesses; in the twenty-fourth of the same king, the two former of these orders
gave a twelfth, the last an eighth; in the thirty-third year, a thirtieth was the
grant of the barons and knights and of the clergy, a twentieth of the cities and
towns; in the first of Edward II., the counties paid a twentieth, the towns a
fifteenth; in the sixth of Edward III., the rates were a fifteenth and a tenth.
These distinct grants imply distinct grantors; for it is not to be imagined that
the commons intermeddled in those affecting the lords, or the lords in those of
the commons. In fact, however, there is abundant proof of their separate existence long before the seventeenth of Edward III., which is the epoch assigned by




RISE OF PARLIAMENTARY REPRESENTATION.                   241
Carte, or even the sixth of that king, which has been chosen by some other writers. Thus the commons sat at Acton Burnell in the eleventh of Edward I.,
while the upper house was at Shrewsbury. In the eighth of Edward II., "the
commons of England complain to the king and his council, &c." These must
surely have been the commons assembled in Parliament, for who else could thus
have entitled themselves? In the nineteenth of the same king we find several
petitions, evidently proceeding from the body of the commons in Parliament,
and complaining of public grievances. The roll of 1 E. III., though mutilated,
is conclusive to show that separate petitions were then presented by the commons, according to the regular usage of subsequent times. And, indeed, the
preamble of 1 E. III., stat. 2, is apparently capable of no other inference.
5. Final Settlement of the English Parliament.-In the Parliament held at
Gloucester in 1407 (9 Henry IV.), we find the constitution of Parliament finally
settling into its present form. The king had assembled the lords, spiritual and
temporal, into his presence, and a debate took place between them about the
state of the kingdom, and its defence; and on the necessity that the king should
have an aid and subsidy. The king demanded of the lords what aid would be
sufficient and requisite; who answered that, considering the necessity of the
king on the one side, and the poverty of his people on the other, no less aids
could be sufficient than those which they then specify. The king then sent to
the commons, to cause a certain number of their body to come before the king
and the lords; and the commons sent twelve of their companions, to whom the
answer given by the lords was communicated. It was the pleasure of the king
that the commons should report to their fellows, to the end that they might take
the shortest course to comply with the intention of the lords. But the report
having been made to the commons, they were greatly disturbed at it, saying and
asserting it to be much to the prejudice and derogation of their liberties. The
king became alarmed by the intelligence of the displeasure of the commons, and
it is stated on the roll that "the king, after he had heard this, not willing that
anything should be done at present, or in time to come, that might any wise
turn against the liberty of the estate for which they are come to Parliament, nor
against the liberty of the lords, wills, and grants, and declares, by the advice
and consent of the lords, that it shall be lawful for the lords to commune among
themselves in this present Parliament, and in every other in time to come, in absence of the king, of the state of the realm, and of the remedy necessary for the
same. And that, in like manner, it should be laufulfor the commons, on their
part, to commune together of the state and remedy aforesaid. Provided always,
that the lords, on their part, and the commons, should not make any report to
the king of any grant, by the commons granted and the lords assented to, nor of
the communications of the said grants, before the lords and commons should be
of one assent and accord in such matters, and then in manner and form as had
been accustomed: that is, by the mouth of the speaker of the commons. The
king willing, moreover, by assent of the lords, that the communication made in
11




242        RISE OF PARLIAMENTARY REPRESENTATION.
that Parliament, as before stated, should not be drawn into example in time to
come, nor turn to the prejudice or derogation of the liberty of the estate for
which the commons were then come, neither in that parliament nor in any other
in time to come; but he willed that himself, and all the estates, should be as
free as they were before."
But notwithstanding these solemn arrangements, the rights of the commons
were not observed, and the commons, in the Parliament held in 1414 (2 Henry
V.), made a protestation against statutes passed without their assent. In a petition addressed to the king, they assert it to be their liberty and freedom that
there should be no statute nor law made, unless they gave thereto their assent;
" considering that the commons of your land, which is, and ever hath been, a
member of your Parliament, are as well assenters as petitioners; that from this
time forward, on complaint of the commons of any mischief, asking remedy by
the mouth of their speaker, or by written petition, there be no law made thereupon, and engrossed as statute and laws, neither by additions nor diminutions,
nor by any manner of terms which should change the sentence, and the intent
asked by the speaker's mouth, or the petitions given in writing; considering our
sovereign lord, that, it is nowise the intent of your commons, that if they ask
you, by speaking or by writing, two things or three, or as many as they list, but
that it ever stand in the freedom of your high regalie to grant which of them
that you list, and to deny the remainder." To this the king's answer was as
follows:-" The king, of his grace especial, granteth that from henceforth nothing be enacted to the petitions of his commons that be contrary of their asking,
whereby they should be bound without their assent; —saving always to our liege
lord his royal prerogative, to grant and deny what he lists of their petitions and
askings aforesaid." * —RowLAND'S English Constitution, p. 104 et seq.
6. Rowland on the Origin of Parliamentary Representation.-It will not be
found unprofitable to peruse the following resumi of the subject from Rowland's
English Constitution, though it does not exactly present the same view as the
text.
By the feudal system, as has been explained, large estates were granted to
the Norman barons, on condition of military service and suit in the king's court;
and these barons, with the prelates-the latter in right of their baronies-formed
the great council of the king. The councils were summoned by the king at his
pleasure and by his writ-the common mode of communicating his commands
to all ranks of persons and public bodies. The councils, after the Conquest,
were often called parliaments-a name which was applied to assemblies of various
kinds; to the Aula Regis, and to the convention from which the great charter
issued, which was called Parliamentum iRunnymedce.
In progress of time, as the original baronies escheated and returned to the
crown, it became the policy of the king to divide them into smaller baronies, and
* Rot. Parl. Henry V. p. 22. This is the first instance on the rolls o.' the use of the
English language.




RISE OF PARLIAMENTARY REPRESENTATION.                   243
thus to provide adherents against the power of the greater barons. But the
new grants were made to the new grantees as tenants in capite, and they thus
became of the same order as the greater barons; but not being possessed of the
same wealth and power, they came to be distinguished as the lesser or smaller
barons. They were equally entitled with the great barons to be summoned to,
and to sit in, the great council. But although they possessed that right, and
regarded it as a privilege and distinction attached to their order, attendance at
the council was a burden, and they were satisfied to be exempt from it, or with
only an occasional attendance.
The great numbers of the military te'nants of the crown, whether called lesser
barons or knights (for both were tenants in capite of the king, and any distinction between them soon merged in their common knighthood), would have made
it difficult for the king to summon them individially and personally by his writ
or letter, like the great barons. Magna Charta solved the difficulty by providing
that " for holding the general council of the kingdom to assess aids, and for the
assessing of scutages, we shall cause to be summoned the archbishops, bishops,
abbots, earls, and great barons (majores barones) of the realm, singly by our
letters; and furthermore, we will cause to be summoned in general by our
sheriffs and bailiffs all others who hold of us in capite." This separation of the
baronage into two classes-those summoned by writs, directed to each individually, and those summoned by sheriffs, under the direction of writs addressed to
them-laid the foundation of the distinction which afterward arose between the
ranks of nobility and gentry.
The next step toward the representation of the inferior class, arose from the
necessity of consulting the convenience as well of the king and council, as of
the knights themselves. The knights were a numerous class in each county.
All persons holding land under the crown as tenants-in-chief, of the yearly value
of twenty pounds, were compellable to receive knighthood. The attendance of
so large a body, even if it were practicable, would have rendered deliberation
impossible. Attendance by representatives must, therefore, when it was desired
to act upon the provision of Magna Charta, have suggested itself as the natural
mode of giving effect to the general but impracticable right; and thus representation of the counties arose. An election of representative knights took place
at the county court, before the sheriff; the choosers (as the electors are called
in the ancient statutes) being the knights themselves; but whether with or without the freeholders, is a question much controverted. At the present day the
counties are supposed to be represented by actual knights. The writ directs the
sheriff to return two knights; and each member, when his election is declared,
is girt with a sword, to supply the fiction of knighthood.
But Magna Charta-out of which the representation of the counties by
knights, as members of the feudal union, may be considered to have almost
directly sprung-gave not the remotest ground for foreseeing, as a coming event,
the attendance in the great council, of representatives of cities and boroughs; it
provided, as we have seen, that the city of London and all other cities and bor



244       RISE OF PARLIAMENTARY REPRESENTATION.
oughs, should have their ancient liberties aud free customs; but these places, at
the time of Magna Charta, were too completely excluded from the feudal union,
to be allowed any share whatever in the national government. London was,
indeed, a city of considerable importance; but the other cities and boroughs,
with the exception of a few to whom charters of immunity had been granted,
belonged to the king or the great barons, who treated them as property, exacting from them toll or tallage. But as trade and commerce extended, the cities
and boroughs increased in population; and as their citizens and burgesses then
also increased in power and importance, they were able to procure or to force
from their lords, charters of liberties, which were numerously granted in the
reign of John; so that, in the reign of Henry III., they had begun to acquire selfgovernment, and oftentimes the ownership of land in the vicinity of the city or
borough; and, what was more important, the abolition of the arbitrary power
of tallage, by the substitution of a fee farm rent, or rent certain. The charters
by which these changes were produced, were often wrung from the lords of the
boroughs; and they have been well called treaties of peace between the burgesses and their lords.
It is remarkable that the first summoning of representatives of counties and
boroughs to a great council, did not proceed from the sovereign, but from a faction which, in the reign of Henry III., obtained, for a time, the command of
the kingdom. Henry had displeased his subjects by his devotion to and his enrichment of foreigners. He paid no regard to the great charter, or to the laws
which it promulgated, although he was forced frequently to recognize and
confirm it. The pusillanimity of his character was unequal to the control of
the turbulent barons; many of the most powerful of whom lived in continual
opposition to his administration and government. At length Simon de Montfort, Earl of Leicester, conspired with other barons to get the king into their
power. They forced him to call a great council or parliament at Oxford, which
assembled there on the 11th of June, 1258; it consisted of the prelates and
barons only; they came to the assembly armed, and attended by their military
vassals, and the king found himself a prisoner in their hands. Through their
coercion, certain laws were passed, called " The Provisions of Oxford," which,
until they were revoked by the restored authority of the king, took all power
from him, and put the government under the control of twenty-four selected
barons. Civil war was the result: a battle was fought between the king and
the barons, at Lewes, on the 14th of May, 1264, in which the king's army was
routed, and the king surrendered himself prisoner to the barons; his son, Prince
Edward, being detained a hostage in Dover Castle.
Through this success, Leicester acquired the exercise of the sovereign
power; and to strengthen his power, by increasing his popularity, he summoned,
in the name of the captive king, a great council or parliament, to meet in London on 20th of January, 1265, in the forty-ninth year of Henry's reign. The
record of this parliament exists: it shows that twenty-three lay lords, and one
hundred and twenty-two ecclesiastics, including abbots, priors, and deans, at



RISE OF PARLIAMENTARY REPRESENTATION.                    245
tended the assembly. Leicester also ordered the attendance of two knights
from each shire, and two citizens and burgesses from each city and borough.
That is the origin of the representation of the people. The writs for summoning this parliament are the earliest writs of summons now extant on record.
Some historians have contended that earlier instances of representation may be
inferred from the facts and documents of history; but the best authorities and
the highest research have made it manifest that the assembly convened by Simon
de Montfort is the first instance of popular representation in parliament.-RowLAND'S Manual of the English Constitution, p. 71-75.




CHAPTER VI.
TRIAL BY JURY.-THE  HIGH  COURT OF STAR-CHAMBER. —
SLAVERY IN ENGLAND.
OBSERVATIONS ON THE PERIOD FROM EDWARD I. TO THE STUARTS-ESSENTIAL FEATURE OF THE JURY TRIAL-THE ROMAN JURY TRIAL-PECULIARITY OF THE
ENGLISH JURY TRIAL-ITS ORIGIN IN THE SAXON COURTS-COMPURGATORSRECOGNITORS-TRIAL BY PEERS IN MAGNA CHARTA-WITNESSES CALLED IN AID
OF JURORS UNDER EDWARD III.-MODERN CONSTITUTION OF THE JURY SETTLED
UNDER HENRY IV.-SUBSEQUENT CHANGES-BLACKSTONE ON THE JURY TRIAL
— COURT OF STAR-CHAMBER-ITS ORIGIN —HOW SETTLED UNDER HENRY VII.ITS JURISDICTION UNDER HENRY VIII.-HISTORICAL DISCUSSION-MODE OF PROCEDURE-ITS ABUSES AND EFFECTS-CIVIL JURISDICTION OF THE STAR-CHAM_
HER-ITS ENORMITIES DESCRIBED BY CLARENDON-OBSERVATIONS-SAXON
SLAVERY IN ENGLAND-GENERAL REMARKS ON SLAVERY-ACCOUNT FROM HALLAM OF ITS GRADUAL DISAPPEARANCE IN ENGLAND-CONCLUSION.
THE constitutional history of England, from  the reign of Edward I. to that of James I., hardly falls within the scope of the
present volume.  Our object is to trace the gradual recognition of
rights, and the still more gradual development of constitutional
contrivances for their protection. The period just indicated was
preeminently barren in such matters.  The rights of English subjects may be fairly taken to have been completely recognized by
the statute de tallagio; and, from the epoch of the settlement of
Parliament on its present basis, no change of importance took place
in the English constitution. Such changes as occurred were merely
local peculiarities, embodying no principle, and developing no general truth.  They are therefore not within the scope of a work
which aims at utility to the American citizen, rather than the enlightenment of the laborious student in English jurisprudence.
Yet the period which intervened between the two reigns above




TRIAL BY JURY.                    247
mentioned, is by no means the least interesting to the student.
Throughout the whole of it we see the doubtful struggle of free
institutions for existence. We behold a Parliament at one time so
strong and so conscious of its strength, as to depose the sovereign
of the country from his kingly office, and change the succession to
the crown;' and at another, we behold the same great council stooping from its high prerogative, to become the servile register of
kingly proclamations, legalizing, in advance, the acts of royal tyranny: and it is startling to observe that at the very time when knowledge was increasing, and a right conception of the true foundation
of all government was becoming most clear, the nearest approach to
despotism was made by English monarchs. Of the line of princes
who have governed England, from the Conqueror down, none have
been more completely arbitrary in their sway than the Tudors.
Yet it is precisely in their reigns that the most rapid strides were
made in knowledge, and that the clearest expositions of the rights
of subjects were produced. No one since the time of Hooker, has
excelled that writer in the clearness of his views on government;
yet his writings were produced under the arbitrary reign of
Elizabeth.3
But neither do we propose to enlarge on these apparently paradoxical phenomena. There is, however, one great institution which
attained nearly its present form during this period, and which,
from its immense importance, we conceive it necessary to trace
through the various phases of its history. We mean TRIAL BY
JURY. And there are two other English institutions to be named
hereafter, from which we believe important lessons may be learned;
and for a sketch of which we think the present is the proper place.
But first of Juries.
I. The essential feature of the Jury Trial is that it provides
two judges, one of whom decides the law in the particular case to
be determined, while to the other is reserved the duty of pronouncing
on the facts, and rendering a final judgment thereupon according to
the law as it has been previously expounded. This, we say, is the
essential feature of the Jury Trial, separated from the adjuncts
which have been connected with it in the common law of Eigland
and the United States; and this separation of the trial of the law




248                  TRIAL BY JURY.
from the trial of the facts, conducing as it obviously does to equity
in judicial procedures, is by no means novel in the history of jurisprudence.
Among the Romans, the trial of a cause was first held before
the Praeetor. To him the prosecutor stated his case without any
evidence of its truth: the defendant in like manner made his answer; and the Praetor then stated the law in the case. With the
truth or falsehood of the statements made by prosecutor and defendant, the Praetor had no concern whatever. He simply cited
the law to show what would be the legal decision of the cause if
the facts were as had been alleged on either hand. This was called
the trial in jure, or trial of the law. On its conclusion the cause
was committed to a court of jurors (judices), for decision by a
trial injudicio, or final judgment of the facts; which ended the proceedings.  How the Roman judices were selected is not altogether
certain. It appears, however, that they were a body of official persons from whom details were made for the trial of particular cases.
Nor is the number of the jurors known.  But it is probable that it
was varied according to the importance of the cause to be decided.
This mode of trial was the ordinary mode among the Romans.
Extraordinary trials were occasionally held-perhaps at the pleasure of the parties to the suit-in which the whole matter was left
to the Prmetor, who then pronounced the law, decided on the facts,
and rendered judgment. Under the emperors, as might have been
anticipated, the principle of consolidation, which was so triumphant
in the executive and legislative powers, was soon extended to the
judicial.  The office of the judices fell into disuse; the extraordinary trial by the Prwetor, became the ordinary course of justice;
and the Roman jury trial-for so it may with perfect truth be called
-was utterly abolished. Despotism has little love for juries.
The peculiar feature of the English jury trial, is the choice of
jurors from the whole body of freemen, dwelling within the jurisdiction of the court which tries the cause; and this, which is in
fact the greatest safeguard of the citizen against the arbitrary despotism of executive authority, is the legitimate outgrowth of the
Saxon system.  We have already described (chap. I.) the folkcourts of the Saxons in their hundreds and counties, in which the




TRIAL BY JURY.                     249
assembled freemen of the district decided both the law and facts of
the causes brought before them, and the ealdorman, though he no
doubt instructed and advised them, had no power to force or alter
their decision. These courts were unquestionably common to all
the Germanic tribes who founded kingdoms in the middle and
southern parts of Europe at the fall of the empire.  The Arimanns among the Franks, the Rachinbourgs among the Lombards,
and the boini honzines among all the tribes, had originally, no doubt,
the same institutions, and the same privileges as the freemen of the
Anglo-Saxons of England. And if it be asked why the jury trial
should have grown up step by step in England to its present form,
while no such institution has arisen on the Continent, the answer
is an obvious one. For on the Continent, the German conquerors
fell very shortly into the legal system of the Roman colonists they
had subdued, and hence the code and practice of the imperial courts
came to be very generally substituted for the rude methods of administering justice they had hitherto pursued.  In England, on
the contrary, the Roman laws could have no influence upon the
Saxons. England had been totally deserted by the Romans, and
the aboriginal inhabitants were so completely subjugated by the
invaders that the greater part took refuge in the fastnesses of
Wales, where they maintained a savage independence till the reign
of Edward I., and those who still remained among the invaders
were reduced to abject slavery. Before the Saxon tribes in England every vestige of the Roman government and jurisprudence disappeared; and in respect to juries and all other matters the folk
courts were left to follow out their course of natural development.
It may be well to state, in this connection, that the development of
jury trial in England was but hindered by the Norman conquest.
For though the feudal courts held by the lords among their vassals
must have had a much more extensive jurisdiction than the like
courts of the Saxon earls among the ceorls belonging to their
mound, yet the folk courts were not by any means abolished. On
this subject we have spoken in a former chapter.  We shall now
proceed to trace the steps by which the tumultuous jury of the
Saxon folk courts gradually formed itself into the modern English
and American jury.
11*




250                   TRIAL BY JURY.
Among the Germanic tribes the ordinary way of settling questions was originally by means of conjurators or compurgators, a method
concerning which there has been and still is much controversy.
According to some writers, and among them a no less authority than
Mr. Sharon Turner, the compurgators-whose number varied with
the importance of the case-were essentially a committee of the
folk court empowered regularly to try the cause, to hear the testimony brought by the parties, and to render a judicial verdict. If
this view of the case be true, these compurgators lacked but one
particular of being identical with our own jurors; and indeed the
parties who sustain it, further hold that at the period of the conquest, jury trial was already as completely perfected among the
Saxons as it is among ourselves.  Of this, to say the least, there
must be very grave doubts; and the evidence adduced in proof of
it is not sufficient to sustain the theory. But neither, on the other
hand, is there sufficient evidence adduced by their opponents in the
opposite extreme. These men affirm that compurgators, so far from
being jurors, were not even witnesses of facts, but persons who,
without the slightest knowledge of the facts, might be brought forward either by the plaintiff or the defendant to swear to their belief of the probability or improbability of the complaint or charge
made. And it is further maintained that the decision of the cause
was given to the party who produced the greater number of compurgators, or whose compurgators were of higher rank than those
of his opponent. It is difficult to believe that any system so
absurd could have prevailed in any country; and although it would
appear that some such system did for a time prevail among the
Frankish tribes, analogy is not enough to prove that it was ever
settled as an institution among the Saxons. Truth lies probably
between the two extremes of these opinions. It is likely that the
oaths of compurgators, intimately acquainted with the parties to
the cause, had great weight with the voters in the folk courts,
especially as it was always probable that they would have a knowledge of the cause at issue, and that witnesses for either party
would be sought by him among his compurgators.  But it is not
likely that the testimony of witnesses was disregarded or excluded,
Be this as it may, the functions of the compurgators were speed



TRIAL BY JURY.                      251
ily determined, and ere long we find them under the new appellation of recognitors. These were persons chosen from the neighborhood of the matter to be tried-generally twelve or some multiple
of twelve-whose office it was to decide the cause from their own
knowledge, and from the information they were able personally to give
each other. As they were themselves chosen on account of their
acquaintance with the litigants and the matters in litigation, they
heard no witnesses, and received no allegations, but in cases of
doubt they were required to state the ground on which they rendered their decision or verdict (vere dictum), which was always given
on oath. When these recognitors were first employed is doubtful.
Some would fix the date long before the conquest, others not till
afterward.  In this case likewise the truth probably lies between.
There is no date at which this step toward jury trial was universally made. It was adopted doubtless by some shire and hundred
motes long before the conquest, but it probably did not become a
universal institution before a later date; and it is not before the
period of the Norman reigns that we have documentary proof that
it had been accomplished-a circumstance at which we cannot be
surprised when we consider the destruction of the Saxon monuments
and records which was made by the Conqueror.
From the date of Magna Charta we have little difficulty in
tracing the remaining steps of jury trial. When it had been decreed that no freeman should be taken or imprisoned, or dispossessed, or banished, or in any way destroyed, but by the lawful
judgment of his peers, it could not but be that a people jealous of
its rights, and daily growing in enlightenment and civilization, should
improve upon the rude contrivances of an epoch less advanced in
knowledge, and as yet untrained by wrongs to guard their rights.
It was an obvious defect in the system of recognitors, that they
were not permitted to call witnesses to their assistance; and in the
reign of Henry III., we find that witnesses on either side were
joined with the recognitors, in one body, for the trial of the cause.
This constitution of the jury must undoubtedly have been often
perverted to injustice in a manner that would naturally suggest its
own remedy.
Accordingly, in the reign of Edward III., A. D. 1350, witnesses




252                    TRIAL BY JURY.
were called in aid of the recognitors, to whom they gave their
testimony. They were not, however, joined with the-m, and took no
part in their decision.  Here, therefore, we may join with the
historian of the court of Chancery, Mr. Spencer, in saying that the
jury was complete in its developments, and that it now remained
only that proper regulations for its action should be framed, and
due restrictions brought to bear on it for the prevention of abuses,
in order to present it in that perfect form which is the pride of
England and America.
And now that the recognitors were permitted to call witnesses
in evidence, little was necessary to be added to the constitution of
the jury trial, but that it should be protected against irregular
and improper testimony, and that its proceedings should be so directed as to insure the gravity becoming in a court of justice.
Therefore, in the reign of Henry IV., a most important change was
made, which put the jury under the direction of the judges in open
court.  The witnesses were now required to give their evidence in
presence of the judges, who controlled the whole proceedings of the
court and jury, and rejected all such evidence as was improper to
be given. Since that time witnesses have not been questioned merely
by jurors, but submitted to examination by the judge, the jury, and
the counsel in the cause; so that their evidence is fairly tested in
a searching cross-examination, and the court has every opportunity
of judging from their manner and appearance how much credit is
to be reposed in what they say.4 The jury trial was thus brought
into its present state.  The separation of the trial of the law from
the trial of the facts was now complete, and while the assistance of
a competent judge was afforded to the jurors to instruct them  in
the law and aid them in recei-ving testimony, the decision of the
cause was not left to a single person, who might be the corrupt
appointee of an unscrupulous and arbitrary Government, but to a
jury of freemen, whose interest it must be to sustain rights which
were their own.
One change only remained to be made.  Hitherto the jurors or
recognitors had been selected from the neighborhood in which the
crime had been committed, or the property in litigation lay-a
provision, which, when the recognitors tendered their verdict fronm




TRIAL BY JURY.                     253
personal knowledge, was essential; but which, now that more reliance was reposed in the extraneous depositions of witnesses, was
likelier to cause prejudice, and a perversion of the judgment of the
juror, that would lead him to give little heed to the importance of
evidence produced in court, when it might happen to conflict
with prepossessions of his own.  To remedy this evil-for an evil
it was felt to be —' numerous partial changes were made from time
to time, until, by statutes in the reigns of Anne and of George II.,
the rule requiring the jurors to be summoned from the vicinage
was abolished, and the selection was directed to be made from the
county at large. And by a decison of the court of King's Bench,
it was declared that if a jury gave a verdict upon their own private knowledge, it was an error, and that they ought to have informed
the court, so that they might have been sworn as witnesses.  This
brought trial by jury to its present perfected condition. As anciently
a most careful scrutiny was made to select such men only as were
familiar with the parties and the facts, the endeavor is now equally
strenuous to obtain such alone as are absolutely unacquainted with
the parties and circumstances of the case, and shall stand unbiassed
by any preconceived opinions and prejudices." (POMEROY'S AMitnic pal
Law, p. 76.)
Thus, then, from this rapid and imperfect sketch, the reader will
perceive that jury trial, like all other guarantees of human freedom, has proceeded from a slight germ through ages of progress,
every step of which is marked in blood, rebellion, revolution, to
that perfect consummation which it is our right now to enjoy. This
venerable institution, which from the first Saxon settlement in
England, to the reign of George the Second, must be counted to
have passed through nearly thirteen centuries of groswth-this
venerable institution, cherished by our Revolutionary fathers, who
declared that in these States the sacred English right of trial by
jury should never be denied-this venerable institution is not
merely threatened in this free (?) Republic, it is trampled under
foot. And yet the people hesitate! The writer of these pages is
no party politician, but thus much a student may say even to the
statesman: It is easier to pull down than to build up! The oak
that grows for ages perishes before the woodman in an hour, and




254                    TRIAL BY JURY.
liberty, which grows more slowly, perishes as quickly if the violence of arbitrary power is suffered, unrebuked, to rise against it.
To the American citizen there is at present a sad warning in the
termination of the first of the following glowing paragraphs from
Blackstone:
" The trial by jury ever has been, and I trust ever will be,
looked upon as the glory of the English law. And if it has so
great an advantage over others in regulating civil property, how
much must that advantage be heightened when it is applied to
criminal cases! It is the most transcendent privilege which any
subject can enjoy or wish for, that he cannot be affected either in
his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbors and equals. A constitution that I
may venture to affirm has, under Providence, secured the just liberties of this nation for a long succession of ages. And, therefore,
a celebrated French writer, who concludes that because 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.
" Great as this eulogium may seem, it is no more than this admirable constitution, when traced to its principles, will be found in
sober reason to deserve.  The impartial administration of justice,
which secures both our persons and our properties, is the great end
of civil society, but if that be entirely intrusted to the magistracy
(a select body of men, and those generally selected by the prince,
or such as enjoy the highest offices of the state), their decisions,
in spite of their own natural integrity, will have frequently an involuntary bias toward those of their own rank and dignity; it is
not to be expected from human nature that the few should be always
attentive to the interests and good of the many.  On the other hand,
if the power of judicature were placed at random in the hands of
the multitude, their decisions would be wild and capricious, and a
new rule of action would be every day established in our courts.
It is wisely therefore ordered that the principles and axioms of law,
which are general propositions, flowing from abstracted reason, and
not accommodated to times or to men, should be deposited in the




TRIAL BY JURY.                       255
breasts of the judges, to be occasionally applied to such facts as
come properly ascertained before them. For here partiality can
have little scope; the law is well known and is the same for all
ranks and degrees; it follows as a regular conclusion from the
premises of fact preestablished. But in settling and adjusting a
question of fact when intrusted to any single magistrate, partiality
and injustice have an ample field to range in; either by boldly
asserting that to be proved which is not so, or by more artfully
suppressing some circumstances, stretching and warping others, and
distinguishing away the remainder. Here, therefore, a competent
number of sensible and upright jurymen, chosen by lot from among
those of the middle rank, will be found the best investigators of
truth, and the surest guardians of public justice. For the most
powerful individual in the state will be cautious of committing
any flagrant invasion of another's right, when he knows that the
fact of his oppression must be examined and decided by twelve indifferent men, not appointed till the hour of trial; and that when
once the fact is ascertained, the law must of course redress it. This,
therefore, preserves in the hands of the people that share which
they ought to have in the adminstration of public justice, and prevents the encroachments of the more powerful and wealthy citizen.
Every new tribunal, erected for the decision of facts, without the
intervention of a jury (whether composed of justices of the peace,
commissioners of the revenue, judges of a court of conscience, or
any other standing magistrates), is a step toward establishing aristocracy, the most oppressive of absolute governments. The feudal
system, which, for the sake of military subordination, pursued an
aristocratical plan in all its arrangements of property, had been
intolerable in times of peace, had it not been wisely counterpoised
by that privilege, so universally diffused through every part of it,
the trial by the feudal peers. And in every country on the Continent,
as the trial by the peers has been gradually disused, so the nobles have
increased in power, till the state has been torn to pieces by rival factions, and oligarchy, in effect, has been established, though under the shadow
of regal government, unless where the miserable commons have taken shelter
under absolute monarchy, as the bghter evil of the two.  And particularly, it is a circumstance well worthy an Englishman's observa



256             HIGH COURT OF STAR CIIAMBER.
tion, that in Sweden the trial by jury, that bulwark of Northern
liberty, which continued in its full vigor so lately as the middle of
the last century, is now fallen into disuse; and that there, though the
regal power is in no country so closely limited, yet the liberties of the
commons are extingzuished, and the government is degenerated'into a mere
aristocracy. IT IS THEREFORE, UPON THE WHOLE, A DUTY WHIICH EVERY
MAN OWES TO HIS COUNTRY, IIIS FRIENDS, IlIS POSTERITY, AND HIMSELF,
TO MAINTAIN TO THE UTMOST OF HIS POWER TIIIS VALUABLE CONSTITUTION IN ALL ITS RIGHITS: TO RESTORE IT TO ITS ANCIENT DIGNITY, IF AT
ALL IMIPAIRED by the different value of property, or otherwise deviated from its first institution; TO AMEND IT WHEREVER IT IS DEFECTIVE; AND ABOVE ALL, TO GUARD WITH THE MOST
ZEALOUS CIRCUMSPECTION AGAINST THE INTRODUCTION OF NEW AND ARBITRARY METHODS OF
TRIAL, WHICH, UNDER A VARIETY OF PLAUSIBLE PRETENCES, MAY IN TIME IMPERCEPTIBLY
UNDERMINE THIS BEST PRESERVATIVE OF ENGLISH  LIBERTY."  (BLACKSTONE, vol. iii. p. 378-381.)
II. Despotism, as we have said, has little partiality for juries;
and when royalty in Engand failed to crush out the free spirit of
the people, and to sweep away the safeguard of the ordinary jury
trial, it availed itself of the tyrant's ever ready and generally
plausible plea-necessity-to erect a court which should be wholly
in the royal interests, and utterly subservient to the crown.  This
court was the High Court of Star Chamber-an institution which
from the reign of Charles I. has had no parallel in England or
America, until, in 1861, a Secretary of State of these United States
assumed to concentrate its powers in his own person-powers so
monstrous, so iniquitous, so utterly repugnant to the plainest principles of justice, that their exercise conduced in no small degree to
bring about that revolution which brought Charles I. to the block;
whose exercise in France produced the scathing whirlwind of
another and more bloody revolution; which here in these United
States-OUR SECRETARIES WOULD DO WELL TO LAY ASIDE.
The Star Chamber is said to have been in early times one of the
apartments of the king's palace at Westminster allotted for the
despatch of public business. The Painted Chamber, the White




HIGH COURT OF STAR CHAMIBER.               257
Chamber, and the Chambre Markolph were occupied by the triers
and receivers of petitions, and the king's council held its sittings
in the Camera Stellata, or Chambre des Estoylles, which was so
called probably from some remarkable feature in its architecture
or embellishment.
" The lords sitting in the Star Chamber " is used as a wellknown phrase in records of the time of Edward III., and the name,
becoming permanently attached to the jurisdiction, continued long
after the local situation of the court was changed.  The judicature
of the court of Star Chamber appears to have originated in the
exercise of a criminal and civil jurisdiction by the king's council,
or by that section of it which Lord Hale calls the Consilihon Ordinarium, in order to distinguish it from the Privy Council, who were
the deliberative advisers of the crown. (HALE'S JTurisdiction of the
Lords' louse, ch. v.; PALGRAVE'S ]Essay on the Oriyinal Authority
of the Ifing's Council.)  The exercise of jurisdiction by the king's
council was considered as an encroachment upon the common law,
and being the subject of frequent complaint by the Commons, was
greatly abridged by several acts of Parliament in the reign of
Edward III. It was discouraged also by the common law judges,
although they were usually members of the council; and from the
joint operation of these, and some other causes, the power of the
Conciliuzm IReqis as a court of justice had materially declined
previously to the reign of Henry VII, although, as Lord Hale
observes, there remain " some straggling footsteps of their proceedings " till near that time.
The statute of the 3d Henry VII. c. i. empowered the chancellor,
treasurer, and keeper of the privy seal, or any two of then, calling
to them a bishop and temporal lord of the council and the two
chief justices, or two other justices in their absence (to whom  the
president of the council was subsequently added), uwpoa bill or information exhibited to the lord chancellor or any other, against any
person for maintenance, giving of liveries, and retainers by indentures or promises, or other embraceries, untrue demeanings of sheriffs
in makling panels and other untrue returns, for taking of money
by juries, or for great riots or other unlawful assemblies, to call the
offenders before them and examine them, and punish them accord



258             HIGH COURT OF STAR CHAMBER.
ing to their demerits.  The object and effect of this enactment are
extremely doubtful. It appears to have been the opinion of the
courts of law at the time the statute was passed that it established
a new jurisdiction entirely distinct from the ordinary jurisdiction
of the council; for, five years afterward, it was resolved by all the
judges, according to the plain words of the law, that the only
judges of the court under the statute were the lord chancellor,
the treasurer, and the keeper of the privy seal, the bishop and temporal lord being merely," called to them " as assistants or assessors,
and not as constituent members of the court. This view of the
effect of the statute is confirmed by the fact that, more than forty
years afterward the president of the council was expressly added
to the judges of the court; " a decisive proof," as Mr. Hallam observes, that it then existed as a tribunal perfectly distinct from the
council itself.
However this may have been, there is no doubt that previously
to the time of Coke, this court, whether distinct, or only a modification of the ancient jurisdiction, had again so completely merged
in the general jurisdiction of the lords of the council, as to justify
his statement that the opinion expressed in the judicial resolution
was " contrary to continual experience."   Sir Thomas Smith, who
wrote his " Treatise on the Commonwealth of England," in the
year 1565, makes no mention of a limited court, though he treats
particularly of the court of Star Chamber, and says that the judges
were the lord chancellor, the lord treasurer, all the king's council,
and all peers of the realm; and he ascribes the merit of having renewed the vigor of the court to Cardinal Wolsey. At the beginning of the reign of Elizabeth, therefore, the court of Star Chamber was unquestionably in full operation, in the form in which it
was known in the succeeding reigns; and at this period, before it
had degenerated into a mere engine of state, it at least appeared
to be by no means destitute of utility. It was professedly the only
court in the land in which great and powerful offenders had no
means of setting at defiance the administration of justice, or of corrupting its course. And during the reign of Elizabeth, when the
jurisdiction of the Star Chamber had reached its maturity, it seems,
exeept in political cases, to have been administered with wisdom and




HIGH COURT OF STAR CHAMBER.                 259
discretion. In trials having any political tendency, it is needless to
observe that this court never was, nor indeed, could be equitable
in its jurisdiction.
The proceedings in the court of Star Chamber were by information, or bill and answer; interrogatories in writing were also exhibited to the defendant and witnesses, which were answered on
oath. The attorney-general had the power of exhibiting ex-officio
informations; as had also the king's almoner to recover deodands
and goods of a felo-de-se, which were supposed to go in support of
the king's alms.  In cases of confession by accused persons, the
information and proceedings were oral; and hence arose one of the
most oppressive abuses of the court in political persecutions. The
proceeding by written information and interrogatories was tedious
and troublesome, often involving much nicety in pleading, and always requiring a degree of precision in setting forth the accusation,
which was embarrassing in a state prosecution. It was with a view
to these difficulties that Lord Bacon, on one occasion, discouraged
the king from adopting this mode of proceeding, saying that " the
Star Chamber, without confession, was long seas."  In political
charges, therefore, the attorney-general derived a great advantage
over the accused by proceeding ore tenus. The consequence was,
that no pains were spared to procure confessions, and pressure of
every kind, including torture, was unscrupulously applied.  According to the laws of the court, no person could be orally charged,
unless he acknowledged his confession at the bar, " freely and voluntarily, without constraint." But this check upon confessions improperly obtained, seems to have been much neglected in practice
during the later periods of the history of this court.  " Therein,"
says Hudson, writing in the reign of James I., " there is sometimes
dangerous excess; for, whereas the delinquent confesseth the offence, sub modo, the same is strained against him to his great disadvantage.  Sometimes many circumstances are pressed and urged
to aggravate the matters which are not confessed by the delinquent,
which surely ought not to be urged, but what he did freely confess,
and in the same manner. And happy were it if these might be
restrained within their limits, for that this course of proceeding is
an exuberancy of prerogative, and, therefore, great reason to keep




260            HIGH COURT OF STAR CHAMBER.
it within the circumference of its own orb." Upon admissions of
immaterial circumstances, thus aggravated and distorted into confessions of guilt, the Earl of Northumberland was prosecuted ore
tenus in the Star Chamber, for being privy to the gunpowder plot,
and was sentenced to pay a fine of ~30,000, and to be imprisoned
for life, " but by what rule," says Hudson,' that sentence was, I
know not, for it was ore tenues, and yet not upon confession."   And
it frequently happened during the last century of the existence of
the Star Chamber, that enormous fines, imprisonments for life, or
during the king's pleasure, banishment, mutilation, and every variation of punishment short of death, were inflicted by a court composed of members of the king's council, upon a mere oral proceeding, without hearing the accused, without a written charge or record of any kind, and without appeal.
The civil jurisdiction of the Star Chamber comprehended mercantile controversies between English and foreign merchants, testamentary causes, and differences between the heads and commonalty
of corporations, both lay and spiritual. The court also disposed
of the claims of the king's almoner to deodands, as above referred
to, and also such claims as were made by subjects to deodands and
the goods of convicted felons, by virtue of charters from the crown.
The criminal jurisdiction of the court was very extensive. If the
king chose to remit the capital punishment, the court had jurisdiction
to punish as crimes even treason, murder, and felony.  Under the
comprehensive name of contempts of the king's authority, all offences against the state were included, forgery, perjury, riots, maintenance, embracery, fraud, libels, conspiracy, and false accusation:
misconduct by judges, justices of the peace, sheriffs, jurors, and
other persons connected with the administration of justice, were all
punishable in the Star Chamber.
A court of criminal judicature, composed of the immediate
agents of prerogative, possessing a jurisdiction very extensive, and
at the same time imperfectly defined, and authorized to inflict any
amount of punishment short of death, must, even when best
administered, have always been viewed with apprehension and
distrust; and accordingly in the earlier periods of its history we
find constant remonstrances by the commons against its encroach~YUVVVVUI -~~V~l —-r ll ~ ~-~ ry^ —-~ —  0




HIGH COURT OF STAR CHAMBER.                  261
ments. As civilization, knowledge, and power increased among
the people, the jurisdiction of the lords of the council became
more odious and intolerable.  Unfortunately, too, the  court of
Star Chamber, which at one time appears to have been serviceable
in the manner described by Sir Thomas Smith, "as bridling such
stout noblemen or gentlemen which would offer wrong by force to
any manner of men, and could not be content to demand or defend
the right by order of law, degenerated in the reigns of James I.
and Charles I. into a mere engine of state, and was employed as
one of the main instruments for the assertion of prerogative, pretension, and the enforcement of illegal taxation.  " They extended
their jurisdiction," says Clarendon, "i'from riots, perjury, and the
most notorious misdemeanors to the asserting of al proclanmations and
orders of state; to the vindicating of illegal conuzissions and grants of
m7onopolies; holding for honorable that which pleased, and for just that
which profited; and becoming both a court of law  o determine civil
riqchts, and a court of revenue to enrich the treasury; the council table
by proclamzation enjoining to the people that which was not enjoined by
the laws, and prohibiting that which was not prohibited; and the Star
(Chamber, which consisted of the same persons in different rooms, censuring the breach and disobedience to these proclamations by very great
fines, imprisonments, and corporal severties; so that any disrespect to
any acts of state, or to the persons of statesmen, were in no time nmore
penal, and the foundations of riqht never more,in danger to be des troyel. "
Let the patriotic American of this day carefully read this description by Lord Clarendon of the usurped prerogatives of the
Star Chamber court of England, weighing calmly each expression
as he comes thereto: let him  then think of the condition of his
country at the present moment, and the more than kingly prerogatives usurped by our court of star chamber, the President and cabinet, in presidential "'proclamations and orders of state," which
have " enjoined upon the people that which is not enjoined by the
laws, and prohibited that which by the laws is not prohibited; " in
illegal " commissions " issued to so-called military governors of
sovereign States and a multitude of unnecessary officers whose
functions have no legal sanction or authority-in grants of cotton




262                    SLAVERY IN ENGLAND.
"monopolies" so freely issued from the Treasury Department to the
partisans of the Administration-in the holding for " loyal " of that
which pleases a mere faction of the people, and for "just" of a
dishonest legal-tender paper currency, which is the reverse of profitable " —in the erection of the President or any member of his cabinet into a sufficient " court of law to determine civil rights," and
thereupon to trample on them-in the empowering of major-generals and others to assume that they may hold courts both of law
and "revenue," in which they confiscate estates and money which do
not "enrich the treasury "-and in the punishment of disobedience
to these proclamations and other usurpations "by very great fines "
unlawfully assessed, by arbitrary " imprisonments" in forts and arsenals of the United States, and': by corporal severities " at the
Dry Tortugas and elsewhere-let him, we say, thus read, thus meditate, and then declare to his own conscience whether he believes
" that any disrespect to acts of state " has ever been " more penal"
than it has been in these States for three years past, and whether
" the foundations of right " were ever " in more danger to be destroyed " than they are now, to-day. These questions must ere long
be effectually answered, or we and our posterity must reap a bitter
harvest from the seeds of tyranny we madly suffer a corrupt Administration to sow over every one of our most ancient and most
cherished rights and institutions.
For the present we must leave the High Court of Star Chamber. We shall have more to say of it when we come to the unhappy reign of Charles I.
III. During this period (from Edward I. to James I.) English
history supplies us with a pregnant illustration of the wisdom of
our English ancestors and our own stupendous folly. The institution of slavery, in attempting to destroy which, we have perhaps
destroyed a nation, is no novelty in history.  It is the creature
of peculiar circumstances always, and always disappears with the
peculiar circumstances which have brought it into being. Slavery
among the Jews, in Greece, in Rome, in the Germanic kingdoms
into which the Empire was divided, and in England, thus rose and
thus passed away; and the same system in America, had it been
left to run its natural course, would, in the providence of God,




SLAVERY IN ENGLAND.                    263
have found its own solution in the influence of natural causes.
During the period of English history with which we are at present concerned, the problem of Saxon slavery was solved; and we
have thought that Hallam's outline of the steps by which this end
was reached might not improperly be introduced here to show
how slavery was done away in England, not by legislation or coercion, and still less by arbitrary royal proclamation, but by a simple change in the original circumstances of the masters and their
slaves; in order to show further that in any country the same institution may be naturally expected to arrive at a like end when
it has ceased to be of service in the commonwealth. We have preferred to give the version of Hallam verbatim, lest it might be
thought that we had in any way distorted or concealed facts, from
a desire to give them a peculiar coloring; and therefore, before giving his account, we venture to present the following points to the
attention of the reader to be borne in mind during his perusal of it:
1. The Saxon churl was as absolute a slave to the Norman as
the Southern negro to his master.
2. The right of the Norman master to the labor of his villain
was a prescriptive and unquestioned right, in no respect differing
from that of the American slaveholder.
3. The abolition of Saxon slavery was not effected by legislation, coercion, or proclamation, but was gradual, natural, and for
the most part voluntary on the master's part.
4. Had coercive emancipation been attempted by any power
in the state to the prejudice of the prescriptive rights of masters,
it cannot be doubted that the Normans would have offered as determined a resistance to it as they did to every other invasion of
their rights. Nor can it well be doubted that an attempt at forced
emancipation, by arousing opposition to it in the Norman masters,
would have indefinitely delayed the emancipation of the churls.
5. If it be said that Southern slavery is governed by the strict
rules of the Roman slave code, and not by the rules of English
common law, our answer is: That under Roman law, slavery disappeared as effectually as under English law; that slavery in any
country must have some peculiar characteristics which do not exist
in any other country; that history shows that, soon or late,




264                 SLAVERY IN ENGLAND.
the growth of population or some other cause leads to a gradual
and natural emancipation, independently of law; and therefore that
a knowledge of the progress of emancipation in the peculiar case
of England is peculiarly valuable in any other case where plans
and systems of emancipation are considered.  Judging from  all
past experience-and not least from the experience of Englandwe believe that the best plan is to have no plan, and that the only
certain system is that which is naturally evolved by circumstances
in each several case.  Interference only retards the progress of
emancipation.  With these remarks we now proceed with Hallam.
In a former passage I have remarked of the Anglo-Saxon
churls, that neither their situation nor that of their descendants
for the earlier reigns after the conquest appears to have been mere
servitude. But from the time of Henry II., as we learn from
Glanvil, the villain so called was absolutely dependent upon his lord's
will, compelled to unlimited services, and destztute of property, not only
in the land he held for his maintenance. but in his own acauisitions.  If
a villain purchased or inherited land, the lord might seize it; if he
accumulated stock, its possession was equally precarious. Against
his lord he had no right of action, because his indemnity in damages, if he could have recovered any, might have been immediately
taken away. If he fled from his lord's service, or from the land
which he held, a writ issued de nativitate probanda, and the master
recovered his fugitive by law.  His children were born to the same
state of servitude; and contrary to the rule of the civil law, where
one parent was free and the other in villainage, the offspring followed
the father's condition.
This class was distinguished into villains regardant, who had
been attached from time immemorial to a certain manor, and villains
in gross, where such territorial prescription had never existed, or
had been broken.  In the condition of these, whatever has been
said by some writers, I can find no manner of difference; the distinction was merely technical, and affected only the mode of pleading. The term, in gross, is appropriated in our legal language to
property held absolutely and without reference to any other. Thus
it is applied to rights of advowson or of common, when possessed
simply, and not as incident to any particular lands. And there can




SLAVERY IN ENGLAND.                    265
be no doubt that it was used in the same sense for the possession
of a villain. But there was a class of persons, sometimes inaccurately confounded with villains, whom it is more important to
separate; villainage had a double sense, as it related to persons or
to lands. As all men were free or villains, so all lands were held
by a free or villain tenure. As a villain might be enfeoffed of freeholds, though they lay at the mercy of his lord, so a freeman might
hold tenements in villainage. In this case his personal liberty subsisted along with the burdens of territorial servitude.  He was
bound to arbitrary service at the will of the lord, and he might,
by the same will, be at any moment dispossessed, for such was
the condition of his tenure.  But his chattels were secure from
seizure, his person from injury, and he might leave the land whenever
he pleased.
From so disadvantageous a condition as this of villainage,
it may cause some surprise that the peasantry of England should
have ever emerged. The law incapacitating a villain from acquiring property, placed, one would imagine, an insurmountable barrier
in the way of his enfranchisement. It followed from thence, and is
positively said by Glanvil, that a villain could not buy his freedom,
because the price he tendered would already belong to his lord; and even
in the case of free tenants in villainage, it is not easy to comprehend
how their uncertain and unbounded services could ever pass into
slight pecuniary commutations, much less how they could come to
maintain themselves in their lands, and mock the lord with a
nominal tenure according to the custom of the manor.
This, like many others relating to the progress of society, is a
very obscure inquiry. We can trace the pedigree of princes, fill up
the catalogue of towns besieged and provinces desolated, describe
even the whole pageantry of coronations and festivals, but we cannot
recover the genuine history of mankind. It has passed away with
slight and partial notice by contemporary writers, and our most
patient industry can hardly at present put together enough of the
fragments to suggest a tolerably clear representation of ancient
manners and social life. I cannot profess to undertake what would
require a command of books as well as leisure beyond my reach;
12




266                 SLAVERY IN ENGLAND.
but the following observations may tend a little to illustrate our
immediate subject, the gradual extinction of villainage.
If we take what may be considered as the simplest case, that of a
manor divided into demesne lands of the lord's occupation, and those
in the tenure of his villains, performing all the services of agriculture for him, it is obvious that his interest was to maintain just so
many of these as his estate required for its cultivation. Land, the
cheapest of articles, was the price of their labor; and though the
law did not compel him to pay this or any other price, yet necessity, repairing in some degree the law's injustice, made those pretty
secure of food and dwelling, who were to give the strength of their
arms for his advantage. But in course of time, as alienations of
small parcels of manors to free tenants came to prevail, the proprietors of land were placed in a new situation relatively to its cultivators. The tenements in villainage, whether by law or usage, were
never separated from the lordship, while its demain was reduced to
a smaller extent, through subinfeudations, sales, or demises for valuable rent.  The purchasers under these alienations had occasion for
laborers; and these would be free servants in respect of such employers, though in villainage to their original lord. As he demanded less of their labor, through the diminution of his domain, they
had more to spare for other masters; and, retaining the character of
villains and the lands they held by that tenure, became hired laborers in husbandry for the greater part of the year.  It is true that
all their earnings were at the lord's disposal, and that he might
have made a profit of their labor, when he ceased to require it for
his own land. But this, which the rapacity of more commercial
times would have instantly suggested, might escape a feudal superior,
who, wealthy beyond his wants, and guarded by the haughtiness of
ancestry against the desire of such pitiful gains, was better pleased
to win the affection of his dependants, than to improve his fortune
at their expense.
The services of villainage were gradually rendered less onerous and
uncertain. Those of husbandry indeed are naturally uniform, and
might be anticipated with no small exactness. Lords of generous
tempers granted indulgences which were either intended to be or
readily became perpetual. And thus, in the time of Edward I.,




SLAVERY IN ENGLAND.                    267
we find the tenants in some manors bound only to stated services
as recorded in the lord's book. Some of these perhaps might be
villains by blood; but free tenants in villainage were much more
likely to retain this precision in their services; and from claiming
a customary right to be entered in the court-roll upon the same
terms as their predecessors, prevailed at length to get copies of it
for their security. Proofs of this remarkable transformation from
tenants in villainage to copyholders are found in the reign of Henry
III. I do not know however that they were protected at so early
an epoch in the possession of their estates.  But it is said in the
year book of the 42d of Edward III. to be " admitted for clear
law, that if the customary tenant or copyholder does not perform
his services, the lord may seize his land as forfeited."  It seems
implied herein that so long as the copyholder did continue to perform the regular stipulations of his tenure, the lord was not at
liberty to divest him of his estate; and this is said to be confirmed
by a passage in Britton, which has escaped my search; though
Littleton intimates that copyholders could have no remedy against
their lords. However, in the reign of Edward IV. this was put
out of doubt by the judges. who permitted the copyholder to bring
his action of trespass against the lord for dispossession.
While some of the more fortunate villains crept up into property as well as freedom under the copyholders, the greater part
enfranchised themselves in a different manner.  The law  which
treated them so harshly, did not take away the means of escape;
nor was this a matter of difficulty in such a country as England.
To this, indeed, the unequal progression of agriculture and population in different counties would have naturally contributed. Alen
emigrated, as they always must, in search of cheapness or employment, according to the tide of human necessities. But the villain
who had no additional motive to urge his steps away from his
native place, might well hope to be forgotten or undiscovered
when he breathed a freer air, and engaged his voluntary labor to
a distant master. The lord had indeed an action against him;
but there was so little communication between remote parts of the
country, that it might be deemed his fault or singular ill fortune
if he were compelled to defend himself. Even in that case the law




268                 SLAVERY IN EN'GLAND.
inclined to favor him; and so many obstacles were thrown in the
way of these suits to reclaim fugitive villains, that they could not
have operated materially to retard their general enfranchisement.
In one case, indeed, that of unmolested residence for a year and a
day within a walled city or borough, the villain became free, and
the lord was absolutely barred of his remedy.  This provision is
contained even in the laws of William the Conqueror, as contained
in Hoveden, and, if it be not an interpolation, may be supposed to
have had a view to strengthen the population of those places which
were designed for garrisons.  This law, whether of William or not,
is unequivocally mentioned by Glanvil. Nor was it a mere letter.
According to a record in the sixth of Edward II., Sir John
Clavering sued eighteen villains of his manor of Cossey, for withdrawing themselves therefrom with their chattels; whereupon a
writ was directed to them; but six of the number claimed tfo be
freemen, alleging the Conqueror's charter, and offering to prove
that they had lived in Norwich, paying scot and lot, about thirty
years; which claim was admitted.
By such means a large proportion of the peasantry before the
middle of the fourteenth century had become hired laborers instead
of villains. We first hear of them on a grand scale, in an ordinance made by Edward III., in the twenty-third year of his reign.
This was just after the dreadful pestilence of 1348, and it recites
that, the number of workmen and servants having been greatly
reduced by that calamity, the remainder demanded excessive wages
from their employers. Such an enhancement in the price of labor,
though founded exactly on the same principles as regulate the value
of any other commodity, is too frequently treated as a sort of crime
by lawgivers, who seem to grudge the poor that transient melioration of their lot, which the progress of population, or other analogous circumstances, will, without any interference, very rapidly
take away. This ordinance therefore exacts that every man in
England, of whatever condition, bond or free, of able body, and
within sixty years of age, not living of his own nor by any trade,
shall be obliged, when required, to serve any master who is willing
to hire him at such wages as were usually paid three years since,
or for some time preceding; provided that the lor'ds of villains or




SLAVERY IN ENGLAND.                    269
tenants in villainage shall have the preference of their labor, so that
they retain no more than shall be necessary for them. More than
these old wages is strictly forbidden to be offered, as well as demanded. No one is permitted, under color of charity, to give
alms to a beggar.  And to make some compensation to the inferior
classes for these severities a clause is inserted, as wise, just and
practicable as the rest, for the sale of provisions at reasonable
prices.
This ordinance met with so little regard that a statute was
made in Parliament two years after, fixing the wages of all artificers
and husbandmen, with regard to the nature and season of their
labor. From this time it became a frequent complaint of the
commons that the statute of laborers was not kept. The king had
in this case probably no other reason for leaving their grievances
unredressed than his inability to change the order of Providence. A
silent alteration had been wrought in the condition and character
of the lower classes during the reign of Edward III. This was the
effect of increased knowledge and refinement, which had been
making a considerable progress for full half a century, though
they did not readily permeate the cold region of poverty and igno.
rance. It was natural that the country people, or uplandish folk,
as they were called, should repine at the exclusion from that enjoyment of competence, and security for the fruits of their labor, which
the inhabitants of towns so fully possessed. The fourteenth century
was in many parts of Europe the age when a sense of political servitude was most keenly felt. Thus the insurrection of the Jacquerie
in France, about the year 1358, had the same character, and resulted
in a great measure from the same causes as that of the English
peasants in 1382. And we may account in a similar manner for
the democratical tone of the French and Flemish cities, and for the
prevalence of a spirit of liberty in Germany and Switzerland.
I do not know whether we should attribute part of this revolutionary concussion to the preaching of Wickliffe's disciples, or look
upon both one and the other as phenomena belonging to that
particular epoch in the progress of society.  New principles, both as
to civil rule and religion, broke suddenly upon the uneducated
mind, to render it bold, presumptuous and turbulent.  But at least




2' 0               SLAVERY IN ENGLAND.
I make little doubt, that the dislike of ecclesiastical power, which
spread so rapidly among the people at this season, connected itself
with a spirit of insubordination and an intolerance of political
subjection. Both were nourished by the same teachers, the lower
secular clergy; and however distinct we may think a religious
reformation from a civil anarchy, there was a good deal common in
the language by which the populace were inflamed to either one or
the other.  Even the scriptural moralities which were then exhibited, and which became the foundation of our theatre, afforded fuel to
the spirit of sedition.  The common original, and common destination of mankind, with every other lesson of equality which religion
supplies to humble or to console, were displayed with coarse and
glaring features in these representations. The familiarity of such
ideas has deadened their effects upon our minds; but when a rude
peasant, surprisingly destitute of religious instruction during that
corrupt age of the church, was led at once to these impressive
truths, we cannot be astonished at the intoxication of mind they
produced.
Though I believe that, compared at least with the aristocracy
of other countries, the English lords were guilty of very little
cruelty or injustice, yet there were circumstances belonging to that
period which might tempt them to deal more hardly than before
with their peasantry. The fourteenth century was an age of greater
magnificence than those which had preceded, in dress, in ceremonies, in buildings; foreign luxuries were known enough to excite an
eager demand among the higher ranks, and yet so scarce as to
yield inordinate prices; while the land-owners were on the other
hand, impoverished by heavy and unceasing taxation. Hence it
is probable that avarice, as commonly happens, had given birth to
oppression; and if the gentry, as I am inclined to believe, had
become more attentive to agricultural improvements, it is reasonable to conjecture that those whose tenure obliged them  to unlimited services of husbandry were more harassed than under their
wealthy and indolent masters in preceding times.
The storm that almost swept away all bulwarks of civilized
and regular society seems to have been long in collecting itself.
Perhaps a more sagacious legislature might have contrived to




SLAVERY IN ENGLAND.                   271
disperse it; but the commons only presented complaints of the
refractoriness with which villains and tenants in villainage rendered
their due services; and the exigencies of government led to the
fatal poll tax of a groat, which was the proximate cause of the
insurrection. By the demands of these rioters we perceive that
territorial servitude was far from extinct; but it should not be
hastily concluded that they were all personal villains, for a large
proportion were Kentish men, to whom that condition could not
have applied; it being a good bar to a writ de nativitate probanda,
that the party's father was born in the county of Kent.
After this tremendous rebellion, it might be expected that the
legislature would use little indulgence toward the lower commons.
Such unhappy tumults are doubly mischievous, not more from the
immediate calamities that attend them, than from the fear and
hatred of the people which they generate in the elevated classes.  The
general charter of manumission extorted from the king by the
rioters of Blackheath, was annulled by proclamation to the sheriffs,
and this revocation approved by the lords and commons in Parliament; who added, as was very true, that " such enfranchisement
could not be made without their consent; which they would
never give to save themselves from perishing altogether in one
day."  Riots were turned into treason by a law  of the same
Parliament. By a very harsh statute in the 12th of Richard II.,
no servant or laborer could depart, even at the expiration of his
service, from the hundred in which he lived, without permission
under the king's seal; nor might any who had been bred to husbandry till twelve years old, exercise any other calling. A few
years afterward, the commons petitioned that villains might not
put their children to school, in order to advance them by the
Church, "and this for the honor of all the freemen of the kingdonm." In the same Parliament they complain that villains fly to
cities and boroughs, whence their masters cannot recover them;
and if they attempt it, are hindered by the people; and prayed
that the lords might seize their villains in such places, without
regard to the franchises thereof. But on both these petitions the
king put in a negative.
From henceforward we see little notice taken of villainage in




272                 SLAVERY IN ENGLAND.
parliamentary records, and there seems to have been a rapid tendency to its entire abolition. But the fifteenth century is barren
of materials; and we can only infer that, as the same causes which
in Edward III.'s time had converted a large portion of the peasantry into free laborers still continued to operate, they must silently
have extinguished the whole system of personal and territorial
servitude. The latter, indeed, was essentially changed by the establishment of the law of copyhold.
I cannot presume to conjecture in what degree voluntary
manumission is to be reckoned among the means that contributed
to the abolition of villainage.  Charters of enfranchisement were
very common upon the Continent. They may perhaps have been
less so in England.  Indeed, the statute de donis must have
operated very injuriously to prevent the enfranchisement of villains regardant, who were entailed along with the land. Instances
however occur from time to time; and we cannot expect to discover
many. One appears as early as the fifteenth year of Henry III., who
grants to all persons, born or to be born within his village of Contishall, that they shall be free from all villainage in body and blood,
paying an aid of twenty shillings to knight the king's eldest son,
and six shillings a year as a quit rent; so in the 12th of Edward
III., certain of the king's villains are enfranchised on payment of
a fine.  In strictness of law, a fine from the villain for the sake of
enfranchisement was nugatory, since all he could possess was
already at his lord's disposal.  But custom  and equity might
easily introduce different maxims; and it was plainly for the lord's
interest to encourage his tenants in the acquisition of money to
redeem  themselves, rather than to quench the exertions of their
industry by availing himself of an extreme right. Deeds of enfranchisement occur in the reigns of Mary and Elizabeth; and
perhaps a commission of the latter princess in 1574, directing the
enfranchisement of her bondmen and bondwomen on certain manors
upon payment of a fine, is the last unequivocal testimony to the
existence of villainage; though it is highly probable that it existed
in remote parts of the country some time longer. —HALLAM'S,FIiddle Ages, vol. III., pp. 171-182.
At this epoch, to continue nearly in the language of the




SLAVERY IN ENGLAND.                    273
author just quoted, we must pause before proceeding with these
inquiries into the English constitution; a sketch very imperfect
and unsatisfactory, but which may at least answer the purpose of
fixing the reader's attention on the principal objects, and of leading him to consult the purest fountains of constitutional knowledge.
From the accession of the house of Tudor, a new period is to be
dated in our history; far more prosperous in the diffusion of opulence, and the preservation of general order, than the preceding,
but less distinguished by the spirit of freedom and jealousy of
tyrannical power. This period, therefore, we shall not attempt to
illustrate, but pass on to the more tumultuous, but more fruitful
epoch of the Stuarts. We have already seen, through the twilight
of our Anglo-Saxon records, a form of civil policy established by
our ancestors, marked, like the kindred governments of the Continent, with aboriginal Teutonic features; barbarous, indeed, and
insufficient for the great ends of society, but capable and worthy
of improvement, because actuated by a sound and vital spirit, the
love of freedom and of justice.  From these principles arose that
venerable institution, which none but a free and simple people
could have conceived, trial by peers; an institution common in
some degree to other nations, but which, more widely extended,
more strictly retained, and better modified among ourselves, has
become perhaps the first, certainly among the first, of our securities
against arbitrary government. We have seen a foreign conqueror
and his descendants trample almost alike upon the prostrate nation,
and upon those who had been companions of their victory, introduce the servitudes of feudal law with more than their usual rigor,
and establish a large revenue by continual precedents upon a system of universal and prescriptive extortion. But the Norman and
English races, each unfit to endure oppression, forgetting their
animosities in a common intererst, enforce by arms the concession
of a great charter of liberties.  Privileges wrested from one faithless monarch, are preserved with continual vigilance against the
machinations of another; the rights of the people become more
precise, and their spirit more magnanimous, during the long reign
of Henry III. With greater ambition and greater abilities than
his father, Edward I. attempts in vain to govern in an arbitrary
12*




274    TRIAL BY JURY. HIGH COURT OF STAR CHAMBER.
manner, and has the mortification of seeing his prerogative fettered
by still more important limitations. The great council of the
nation is opened to the representatives of the commons. They
proceed by slow and cautious steps to remonstrate against public
grievances, to check the abuses of administration, and sometimes to
chastise public delinquency in the officers of the crown.  A number of remedial provisions are added to the statutes; every Englishman learns to remember that he is the citizen of a free state,
and to claim the common law as his birthright, even though the
violence of power should interrupt its enjoyment. It were a strange
misrepresentation of history to assert that the constitution had attained anything like a perfect state in the fifteenth century; but we
know not whether there are any essential privileges of our countrymen, any fundamental securities against arbitrary power, so far as
they depend upon positive institutions, which may not be traced to
the time when the house of Plantagenet filled the English throne.
NOTES.
1. Deposition of Richard If. by Parliament.-The Parliament closed this
reign, Richard II.'s, and exercised the supreme power of government by the
removal of Richard II. from the throne and the election of Henry, Duke of
Lancaster, to succeed him as king. The rolls of Parliament describe the proceedings at great length: the king's renunciation of the throne, for causes of
inability and insufficiency by himself confessed; his absolution of the people
from all allegiance; and his recommendation of the duke of Lancaster as his
successor. The parliament pronounced sentence of deposition against him and
Henry claimed the vacant throne. The lords spiritual and temporal, and commons, as the three estates of the realm, accepted Henry as king, he disclaiming all right by conquest.  The justices and other officers of state were
sworn into their offices, and proclamation was made for his coronation.
Procurators announced to Richard their acceptance of his resignation, and his
deposition; and renounced and gave back to him the homage and fealty formerly
made to him.
2. Proclamations of the Sovereign declared by Act of Parliament to have the
force of Laws.-The Parliament having thus resigned all their ecclesiastical
liberties, proceeded to an entire surrender of their civil; and without scruple or
deliberation they made by one act a total subversion of the English coititution.




SLAVERY IN  ENGLAND.                         275
They gave to the king's proclamations the same force as to a statute enacted
by Parliament; and to render the matter worse, if possible, they framed this
law as if it were only declaratory, and were intended to explain the natural
extent of the regal authority. The preamble contains, that the king had formeriy set forth several proclamations, which froward persons had wilfully contemned, not considering what a king by his royal power may do; that this
license might encourage offenders not only to disobey the laws of Almighty
God, but also to dishonor the king's most royal majesty, who may full ill bear
it; that sudden emergencies often occur, which require speedy remedies, and
cannot await the slow assembling and deliberations of Parliament; and that,
though the king was empowered, by his authority, derived from  God, to
consult the public good on these occasions, yet the opposition of refractory
subjects might push him to extremity and violence. For these reasons, the
Parliament, that they might remove all occasion of doubt, ascertained by a
statute this prerogative of the crown, and enabled his majesty, with the advice
of his council, to set forth proclamations, enjoining obedience under whatever
pains and penalties he should think proper; and these proclamations were to
have the force of perpetual laws.
What shows either a stupid or a wilful blindness of Parliament is, that they
pretended, even after this statute, to maintain some limitations in the government; and they enacted that no proclamation should deprive any person of
his lawful possessions, liberties, inheritances, privileges, franchises; nor yet
infringe any common law or laudable custom of the realm. They considered
not that no penalty could be inflicted on the disobedience of proclamations,
without invading some liberty or property of the subject; and that the power
of enacting new laws, joined to the dispensing power, then exercised by the
orown, amounted to a full legislative authority. —HuiE, iv. 207, anno 1539.
The Parliament also facilitated the execution of the former law, by which
the king's proclamations were made equal to statutes. They appointed that
any nine counsellors should form a legal court for punishing all disobedience to
proclamations.  The total abolition of juries in criminal causes, as well as of al
Parliaments, secured, if the king had so pleased, the necessary consequence of
this enormous law. He might issue a proclamation for the execution of any
penal statute, and afterward try the criminals, not for a breach of the statute,
but for disobedience to his proclamation. It is remarkable, that the lord Mountjoy entered a protest against this law; and it is equally remarkable, that that
protest is the only one entered against any public bill during this whole reign. —
HufiE, iv. 250, anno 1543.
This law, the destruction of all laws, by which the king's proclamation was
made of equal force with a statute, was repealed under Edward VI. D u:ing the
reign of Elizabeth, however, the rights conferred by it upon the sovereign were
exercised with such extravagance as to be even ridiculous. Hume says:
In reality, the crown possessed the full legislative power, by means of proclamnations, which might effect any matter, even of the greatest importance. and




276                        TRIAL BY JURY.
which the Star Chamber took care to see more rigorously executed than the
laws themselves. The motives of these proclamations were sometimes very
frivolous and even ridiculous. Queen Elizabeth had taken offence at the smell
of woad; and she issued an edict prohibiting any one from cultivating that
useful plant. She was also pleased to take offence at the long swords and high
ruffs then in fashion. She sent about her'officers, to break every man's sword,
and clip every man's ruff, which was beyond a certain length. —HcuE, v. 458.
3. The following paragraphs will suffice as an illustration of the style and
views of Hooker. Showing the evils of anarchy, and the necessity of comrent to
the validity of government, he says:
"To take away all such mutual grievances, injuries, and wrongs, there was
no way but only growing into composition and agreement amongst themselves,
by ordaining some kind of government public, and by yielding themselves subject thereunto: that unto whom they granted authority to rule and govern, by
them the peace, tranquillity, and happy estate of the rest might be procured.
Men always knew that when force and injury was offered they might be defenders of themselves; they knew that howsoever men may seek their own commodity, yet if this were done with injury unto others, it was not to be suffered, but
by all men and by all good means to be withstood; finally they knew that no
man might in reason take upon him to determine his own right, and according to
his own determination proceed in maintenance thereof, inasmuch as every man is
towards himself and them whom he greatly affecteth partial; and therefore that
strifes and troubles would be endless, except they gave their common consent
all to be ordered by some whom they should agree upon: without which consent there were no reason that one man should take upon him to be lord or
judge over another; because, although there be according to the opinion of
some very great and judicious men a kind of natural right in the noble, wise, and
virtuous, to govern them which are of servile disposition; nevertheless for manifestation of this their right, and men's more peaceable contentment on both
sides, the assent of those who are to be governed seemeth necessary.
"The lawful power of making laws to command whole politic societies of
men belongeth so properly unto the same entire societies, that for any prince or
potentate of what kind soever upon earth to exercise the same of himself, and
not either by express commission immediately and personally received from God,
or else by authority derived at the first from their consent upon whose persons
they impose laws, it is no better than mere tyranny.
" Laws they are not, therefore, which public approbation hath not made so.
But approbation not only they give who personally declare their assent by voice,
sign, or act, but also when others do it in their names, by right originally at the
least derived from them. As in parliaments, councils, and the like assemblies,
although we be not personally ourselves present, notwithstanding, our assent is
by reason of others, agents there in our behalf. And what we do by others, no
reason but that it should stand as our deed, no less effectually to bind us than if
ourselves had done it in person." —Eccl, Pol., Bk. I., ch. x. sec. 2, 3, 4, 8.




HIGH  COURT OF STAR CHAMBER.                       27 7
Of limited or constitutional government, usurpation, and the right of revolution, Hooker speaks thus:
" Even in these very actions which are proper unto dominion, there must be
some certain rule, whereunto kings in all their proceedings ought to be strictly
tied.
" The cause of deriving supreme power from a whole entire multitude unto
some special part thereof, is partly the necessity of expedition in public affairs;
partly the inconveniency of confusion and troubles, where a multitude of equals
dealeth; and partly the dissipation which must needs ensue in companies, where
every man wholly seeketh his own particular. Men by that which is proper are
severed, united they are by that which is common. Wherefore, besides that
which moveth each man in particular to seek his private, there must of necessity
in all public societies be also a general mover, directing unto the common good,
and framing every man's particular to it. The end whereunto all government
was instituted, was bonum publicum, the universal or common good."-Eccl. Pol.,
Bk. VIII., ch. ii. sec. 16, 18.
" First unto me it seemeth almost out of doubt and controversy, that every
independent multitude, before any certain form of regiment established, hath,
under God's supreme authority, full dominion over itself, even as a man not tied
with the bond of subjection as yet unto any other, hath over himself the like
power. God creating mankind did endue it naturally with full power to guide
itself, in what kind of societies soever it should choose to live. A man which is
born lord of himself may be made another's servant; and that power which
naturally whole societies have, may be derived into many, few, or one, under
whom the rest shall then live in subjection."-HOOKER, Bk. VIII., ch. ii. sec. 5.
"I cannot choose but commend highly their wisdom, by whom the foundations of this commonwealth have been laid; wherein though no manner of person
or cause be unsubject to-the king's power, yet so is the power of the king over
all and in all limited, that unto all his proceedings the law itself is a rule. The
axioms of our regal government are these:'Lex facit regem;' the king's
grant of any favour made contrary to the law is void;' Rex nihil potest nisi
quod jure potest.' Our kings therefore, when they take possession of the room
they are called unto, have it pointed out before their eyes, even by the very solemnities and rites of their inauguration, to what affairs by the said law their supreme authority reacheth." —cecl. Pol., Bk. VIII., ch. ii. sec. 13.
" Subjection therefore we owe, and that by the law of God; we are in conscience bound to yield it even unto every of them that hold the seats of
authority and power in relation unto us. Howbeit, not all kind of subjection
unto every such kind of power. Concerning scribes and pharisees, our Saviour's
precept was,' Whatsoever they shall tell you, do it;' was it His meaning that if
they should at any time enjoin the people to levy an army, or to sell their lands
and goods for the furtherance of so great an enterprise; and in a word, that
simply whatsoever it were which they did command, they ought without any
exception forthwith to be obeyed? No; but' whatsoever they shall tell you,'




278                      TRIAL BY JURY.
must be understood in pertinentibus ad cathedram, it must be construed with
limitation, and restrained unto things of that kind which did belong to their
place and power. For they had not power general, absolutely given them to
command them.
"The reason why we are bound in conscience to be subject unto all such
power, is because all " powers are of God." They are of God either instituting
or permitting them. Power then is of divine institution when either God himself doth deliver, or men, by light of nature, find out the kind thereof. So that
the power of parents over children, and of husbands over their wives, the power
of all sorts of superiors, made by consent of commonwealths within themselves, or
grown from agreement amongst nations, such power is of God's own institution
in respect of the kind thereof.
"' As for them that exercise power altogether against order, although the kind
of power which they have may be of God, yet is their exercise thereof against
God, and therefore not of God, otherwise than by permission, as all injustice is.
" Usurpers of power, whereby we do not mean them that by violence have aspired unto places of high authority, but them that use more authority than they
did ever receive in form and manner before mentioned (for so they may do,
whose titles unto the rooms of authority which they possess no man can deny to
be just and lawful: even as contrariwise some men's proceedings in government
have been very orderly who, notwithstanding, did not attain to be made governors without great violence and disorder); such usurpers, therefore, as in the
exercise of their power do more than they have been authorized to do, cannot in
conscience bind any man unto obedience."-Eccl. Pol., Bk. VIII., Appendix No. I.
In the first months of Elizabeth's reign, Aylmer, afterward Bishop of London,
published an answer to a book by John Knox, against female monarchy, or, as
he termed it, " Blast of the Trumpet against the Monstrous Regiment of Women;" which, though written in the time of Mary, and directed against her, was
of course not acceptable to her sister. The answerer relies, among other arguments, on the nature of the English Constitution, which by diminishing the
power of the crown, renders it less unfit to: be worn by a woman. His clear
conception of the nature of a government of laws is well worthy of notice:' Well," he says, "a woman may not reign in England! Better in England
than anywhere, as it shall appear to him, that withdut affection, will consider the
kind of regiment. While I compare ours with others, as it is in itself, and not
maimed by usurpation, I can find none either so good or so indifferent. The
regiment of England is not a mere monarchy, as some, for lack of consideration,
think, nor a mere oligarchy, nor democracy, but a rule mixed of all these,
wherein each one of these have, or should have, like authority. The image
whereof, and not the image, but the thing indeed, is to be seen in the parliament
house, wherein you shall find these three estates: the king or queen, which representeth the monarchy; the noblemen, which be the aristocracy; and the burgesses and knights, the democracy. If the Parliament use their privileges, the




HIGH  COURT OF STAR CHAMBER.                       279
king can ordain nothing without them; if he do, it is his fault in usurping it, and
their fault in permitting it. Wherefore, in my judgment, those that in King Henry
VII.'s days would not grant him that his proclamations should have the force
of a statute, were good fathers of the country, and worthy of commendation in
defending their liberty. But to what purpose is all this? To declare that it is
not in England so dangerous a matter to have a woman ruler as men take it to
be. For first, it is not she that ruleth, but the laws, the executors whereof be
her judges appointed by her, her justices, and such other officers. Secondly, she
maketh no statutes or laws, but the honorable court of Parliament; she breaketh
none, but it must be she and they together, or else not. If, on the other part,
the regiment were such as all hanged on the king's or queen's will, and not
upon the laws written; if she might decree and make laws alone without her
senate; if she judged offences according to her wisdom, and not by limitation of
statutes and laws, if she might dispose alone of war and peace; if, to be short,
she were a mere monarch, and not a mixed ruler, you might, peradventure, make
me to fear the matter the more, and the less to defend the cause." —HALLAM'S
Constitutional History of England, vol. i. pp. 280, 281.
4. Blackstone on the open Examination of Witnesses. —" This open examination of witnesses viva voce, in the presence of all mankind, is much more conducive to the clearing up of truth, than the private and secret examination, taken
down in writing before an officer, or his clerk, or in the ecclesiastical courts, and
all others that have borrowed their practice from the civil law, where a witness
may frequently depose that, in private, which he may be ashamed to testify in a
public and solemn tribunal. There an artful or careless scribe may make a witness speak what he never meant, by dressing up his depositions in his own
forms and language; but he is here at liberty to correct and explain his meaning, if misunderstood, which he can never do after a written deposition is taken
down. Besides, the occasional questions of the judge, the jury, and the counsel,
propounded to the witnesses on a sudden, will sift out the truth much better
than a formal set of interrogatories, previously penned and settled; and the
confronting of adverse witnesses is also another opportunity of obtaining a clear
discovery, which can never be had upon any other method of trial. Nor is the
presence of the judge during the examination a matter of small importance;
for, besides the respect and awe with which his presence will naturally inspire
the witness, he is able, by use and experience, to keep the evidence from wandering from the point in issue. In short, by this method of examination, and
this only, the persons who are to decide upon the evidence have an opportunity
of observing the quality, age, education, understanding, behavior, and inclinations of the witness; in which points all persons must appear alike, when their
depositions are reduced to writing, and read to the judge, in the absence of those
who made them; and yet, as much may be frequently collected from the madner in which the evidence is delivered, as from the matter of it. These are a
few of the advantages attending this, the English way of giving testimony ore
tenus."-BLACKSTONE, vol. iii. p. 373, 374.




CHAPTER VII.
THE STUARTS.  JAMES I.
CHARACTER OF THE STUART PERIOD-ACCESSION OF JAMES-HIS SPEECH ON OPENING
HIS PARLIAMENT-DEFINITION OF TYRANNY-THE DOCTRINE OF DIVINE RIGHT
-SEVERITIES AGAINST ROMAN CATHOLICS-PARLIAMENT OF 1609-ACT FOR
COMPELLING OATHS OF ALLEGIANCE-THE COMMONS MAINTAIN THEIR RIGHT
OF DECIDING ELECTION RETURNS-PARLIAMENTARY PRIVILEGE-TIIEIR " APOLOGY   TO THE KING-THEY EXPEL A MEMBER AT HIS DICTATION-HIGH
PREROGATIVE SPEECH OF JAMES TO THE PARLIAMENT IN 1610-ILLEGAL EXACTION OF TONNAGE AND POUNDAGE-REMONSTRANCE OF THE COMMONS-CASE
OF DR. COWELL-CONSIDERATION OF GRIEVANCES-ATTEMPT AT UNION BETWEEN ENGLAND AND SCOTLAND, AND AT THE ABOLITION OF FEUDAL TENURESEXPEDIENTS OF JAMES FOR RAISING MONEY-THE UNDERTAKERS' PARLIAMENT
— PARLIAMENT OF 1620-1-JAMES'S SPEECH-DISPUTE OF THE COMMONS WITH
THE KING ON ADJOURNMENT-PARLIAMENT REASSEMBLED-THE PROPOSED
SPANISH MATCH-PETITION OF THE COMMONS-ANGRY LETTER OF JAMES TO
THE SPEAKER-SECOND PETITION AND REMONSTRANCE OF THE COMMONSJAMES'S ANSWER-PROTESTATION OF THE COMMONS-IT IS TORN OUT FROM THE
RECORD BY THE KING-PUNISHMENT OF MEMBERS-PARLIAMENT OF 1623MONOPOLIES, TOGETHER WITH THE SUSPENDING AND DISPENSING POWERS OF
THE KING ABOLISHED-CONCLUDING OBSERVATIONS.
WE come now to a period in the constitutional history of
England when all that had been gained for liberty was once more
to be brought into dispute, and the long controversy  between
prerogative and freedom was to receive its ultimate decision.
Under the Stuart kings the absolutism that existed in the constitution girded on its strength, did battle for existence, fell before
the chartered rights of a brave people resolute to guard them,
and was blotted out forevermore.  The story of this period has
none of the romance which is connected with the giving of the first
great charter.  Here we see no lordly barons with their retinues




THE STUARTS. JAMES I.                   281
of belted knights and sturdy yeomen marching in the pomp and
circumstance of war to win a bloodless triumph from a recreant
king. Here we have no true English prelate like the archbishop
Langton standing for a nation's right against a tyrant's usurpation.
In this strife we have on one side royalty with all its prestige; on
the other a plain English House of Commons; and between, we see
the church arrayed upon the side of royalty against the people;
while the peers sustain the commons at the same time that they
strive to reconcile a quarrel which portends so terrible an end.
On the surface nothing tells at first of the volcanic fire that
threatens the existence of the constitution of the kingdom or the
sovereign's throne.  The war-for war it is-seems to be but a
paper fusillade. The king sends messages to Parliament; adjourns,
prorogues, dissolves the Parliament; proclaims the nullity of laws
passed by the Parliament; gives orders for the levying of taxes,
and imprisons freemen without trial, in defiance of the Parliament;
all on paper.  Parliament, on the other hand, sends back what is
apparently a shower of paper balls and nothing more. It passes
resolutions, signs addresses, and remonstrances, and humble parliamentary petitions, and asserts its rights-on paper.  But anon
the papers glow with passion and men's hearts burn, and the torch
of civil war lights up the land; and by and by, as oftenest happens
in the course of revolutions, people, weary of the strife, give up
all they have fought for to the hands of a worse tyrant than they
had before —enduring under a man they call (in mockery is it?)
Lord Protector of a Conmmonwealth (!) more grinding and degrading
despotism than they suffered in the worst days of their beheaded king. Yet were the Greeks wise who said, All things are
born of battle. For by the paper fusillade, no less than the civil
strife, and the hatred roused against the puritan Lord Destroyer of
the Iiingdom, the atmosphere of English mind was cleared.  And
liberty, at length, defined and guarded by sufficient safeguards, grew,
as she only can grow, by the aliment of strife and war. He who
has no imagination would do well to pass over the outwardly dull
details of parliamentary contention we are now about to lay before
him. But he who has eyes to see the national life that burns and
glows, or -sometimes only faintly smoulders, under their paper pro



282               THE STUARTS. JAMES I.
tocols and manifestoes, may learn much therefrom not altogether
useless in this epoch of the history of the United States. We are
now about to give the parliamentary history of England under the
Stuart kings, in order to bring clearly out the necessities which
called for the second and third Great Charters of the liberties of
England, commonly called the Petition of Right and the Bill of
Rights. The same necessities may arise again; many citizens of these
States think they have occurred already in the past three years.
Nor are there wanting those who hold that Charles I. never did,
in all his reign, commit more flagrant outrages upon the English
constitution and the rights of Englishmen, than have been openly
and boldly committed on the fourth Great Charter —the incomparable Constitution of the United States, and on free-born Americans
by a so-called republican (!) administration. Whether these accusations be true or not, we leave our readers to determine.  We
shall tell the simple tale, neither extenuating nor maliciously
exaggerating anything whatever.
JAMES TTHE SIXTH of Scotland and FIRST of England, the
successor of Elizabeth, ascended the throne on the 24th of March,
1603. He was received with great and hearty welcome by the
people, who had become tired of their long submission to Elizabeth;
and it is probable that the ardent patriots who had sprung up in
the nation toward the end of her reign looked forward to the
occupation of the throne by a foreigner, for an opportunity to establish the principles of liberty, for which they had contended under
her repressive system. Yet in the outset of James's reign the most
extreme flattery-which we have no mind to repeat-was addressed
to the monarch; though we must observe that it was always flattery
of his person, never flattery of his official prerogative.  Such as it
was, it proved acceptable to James; and nothing could have been
more promising or more fallacious than the concord which at first
prevailed between the first king of the House of Stuart and the
kingdom he had come to govern. The assembling of Parliament
was delayed on account of the plague which prevailed during the
year of James's accession, and did not meet before the 19th of March,
1604. It was opened with a long speech from the king, in which
he so plainly defined the rights and duties of a constitutional




THE STUARTS. JAMES I.                   283
sovereign, that his words are quoted by Locke in support of his
definition of tyranny, which the philosopher describes as " the exercise
of power beyond right."  James said, " I will ever prefer the weal of
the public and of the whole commonwealth, in making of good laws
and constitutions, to any particular and private ends of mine;
thinking ever the wealth and weal of the commonwealth to be my
greatest weal and worldly felicity-a point wherein a lawful king
doth directly differ from a tyrant.  For I do acknowledge that the
special and greatest point of difference that is between a rightful
king and a usurping tyrant, is this:-that whereas the proud and
ambitious tyrant doth think his kingdom and people are only
ordained for satisfaction of his desires and unreasonable appetites,
the righteous and just king doth by. the contrary acknowledge
himself to be ordained for the procuring of the wealth and property
of the people." It is curious to find such constitutional principles
laid down at the commencement of the career of the Stuart kings
-a dynasty to which we owe the monstrous doctrine of DIVINE
RIGHT.  This doctrine, which we do not hesitate to stamp as
monstrous, was thoroughly believed by James and his immediate
successor, Charles I., and being in fact the platform of their principles, must be clearly understood if we would have an intelligent
conception of the motives which actuated the Stuarts in their long
struggle with their subjects. It was current in the reign of James,
who went so far as to employ his pen to enforce it; but we may
collect a more concise account of it, and of the arguments by which
it was maintained, from a later and more celebrated work, called the
"Patriarch," written by Sir Robert Filmer in the reign of
Charles I., and published after the restoration of Charles IT. " All
government (it is asserted) is absolute monarchy. No man is born
free; and therefore could never have the liberty to choose either
governor or form of government. The father of a family governs
by no law but his own.  Kings, in the right of parents, succeed
to the exercise of supreme jurisdiction.  They are above all laws.
They have a divine right to absolute power; and are not answerable to human authority."  The consequence of these propositions was assumed to be " that all laws, privileges, and grants of
princes have no force but during their lives, if they be not ratified




284                THE STUARTS. JAMES I.
by the express consent or the sufferance or the prince following;
and that a perfect kingdom is that where the king rules all things
according to his own will."  This doctrine was preached by the
Church and acted upon by the Stuart kings.
This Parliament was chiefly occupied with passing and restoring penal laws against the Roman Catholics. Its most important
acts will be described hereafter. The second session of Parliament
commenced on the 5th of November, 1605, the day after the discovery of the Gunpowder Plot; and the act which was immediately
passed for establishing an annual public thanksgiving for the deliverance of the king, was used as an occasion for more of that fulsome
and even blasphemous adulation which had been addressed to him
at the beginning of his reign. This Parliament was chiefly noted
for severities against the Roman Catholics.
The Parliament held in 1609 continued the same course of
severity against the papists (i. e., to enforce the established religion
upon them). It passed an act that no person should be naturalized,
or restored in blood (in other words, relieved from the penalties of
attainder), unless he received the sacrament before the bill was
exhibited, and took the oath of allegiance and supremacy before it
was read a second time.
An act of the same session, 1609, shows the willing concurrence
of Parliament in severe laws. It was " for administering the oath
of allegiance, and reformation of married women recusants."  " To
show how greatly your loyal subjects approve the oath, they prostrate themselves at your majesty's feet, that the oath may be administered to all your subjects."  It required the oath to be taken by all
persons, ecclesiastical and temporal, of both sexes, above the age
of eighteen years.  Numerous clauses describe the officials before
whom the several orders and ranks ill the state —the church, the
law, the army and navy, members of the universities and of Parliament, doctors of physic, aldermen, and freemen-should take the
oath, which was to be taken by all within six months.  Any of the
privy council, or a bishop, might require any baron or baroness
above the age of eighteen-and two justices of the peace might
require any other person above the same age-to take the oath.
If refused, the person tendering the oath was to commit the




THE STUARTS. JAMES I.                   285
offender to the common jail, there to remain without bail, until the
next assizes, or quarter sessions; where if the oath were again
refused, the person refusing incurred the penalties of prcamunire;
except married women, who were to be imprisoned without bail,
until they would take the oath. Persons refusing the oath were
disabled to hold any public place of judicature, to bear any office,
or to practise the common law, or civil law, or physic, or surgery,
or the art of an apothecary, or any liberal science for gain, until
they should receive the oath.
But ere long a change became apparent in the actions of the
Commons.  James-" the wisest fool in Christendom " -was little
likely to sustain the reverence inspired by his position. He was a
striking contrast to his predecessor; and the House of Commons,
relieved from the dread with which Elizabeth had inspired them,
soon gave James to understand that he must not expect submission
to his absolute will where their privileges were concerned. These
they brought forward, and enforced with an energy and spirit, in
striking contrast with the humble language of their statutes. In
the first Parliament they entered into a contest, in which the king
took personal part, as to their right to decide upon election returns.
The king having assumed a right to limit the selection of the
people in regard to the persons whom they might return as members of the House of Commons, and in the Court of Chancery to set
aside elections not made in accordance with his proclamation, the
house made so determined a resistance to this manifest invasion
of its privilege, that James was glad to end the matter by a compromise which left the house substantially victorious; and from
this time forward no attempt ever was made to dispute their jurisdiction over the returns of their members.
In the same Parliament they established (not without a struggle)
their privilege to deliver out of custody members arrested in execution for debt, and to punish those who made or procured such arrest;
which privilege was put into an indisputable position by an act of
the same Parliament.
Besides these successes, the House of Commons of James's first
Parliament laid a strong foundation for the future efforts by a
bold and explicit statement of their constitutional rights and liber



286               THE STUARTS. JAMES 1.
ties, which they caused to be drawn up by a committee of the house,
in order to be delivered to the king. It is entitled " A Form of
Apology and Satisfaction to be delivered to his Majesty; " and must
ever be considered as an important constitutional document.  It is
addressed to the king, and it commences by expressing a desire to
remove from the mind of the king (whom they style " a king of
such understanding and wisdom as is rare to find in any prince in
the world") misinformation touching the estate of the House of the
Commons, as to the privileges of the commons, and their several
proceedings during this Parliament.  They reduce these misinformations to three principal heads. "1st, Touching the cause of the
joyful receiving of your majesty into the kingdom;-2dly, Touching the rights and liberties of your subjects of England, and the
privileges of this house; —3dly, Touching the several actions and
speeches passed in the house."
They " declare, as to the first, that they received him not with
fear, but with joy and cheerfulness, and with a general hope that,
under his reign, peace, justice, and all virtue, should renew again and
flourish. Touching the privileges (the second) the misinformation
delivered was —ist, That we hold not privileges of right, but of
grace only, renewed every Parliament, by way of donation, upon
petition, and so to be limited; 2dly, That we are no court of record, nor yet a court that can command view of records, but that
our proceedings here are only to acts and memorials, and that the
attendance with the records is courtesy, not duty; 3dly, and lastly,
That the examination of the return of writs for knights and burgesses is without our compass, and due to the chancery.
" They, in the name of the whole commons of England, and for
themselves and their posterity, protest against these assertions, and
desire that their protestation may be recorded to all posterity.
And contrariwise, against these misinformations they most truly
avouch:
" 1st. That our privileges are our rights and due inheritance, no
less than our lands and goods.
" 2dly. That they cannot be withheld from us, denied, or impaired, but with apparent, wrong to the whole state of the realm.
"3dly. That our making of request, in the entrance of Parlia



rHE STUARTS. JAMES I.                 287
ment, to enjoy our privilege, is an act only of manners, and doth
weaken our right no more than our suing to the king for our lands
by petition, which form, though new and more decent than the old
by praecipe, yet the subject's right is no less now than of old.
" 4thly. We avouch also, that our house is a court of record, and
so ever esteemed.
" 5thly. That there is not the highest standing court in the land
that ought to enter into competency, either for dignity or authority,
with this high Court of Parliament; which, with your Majesty's
royal assent, gives laws to other courts, but from other courts,
receives neither laws nor orders.
" 6thly and lastly. We avouch that the House of Commons is
the sole proper judge of return of all such writs, and of the election of all such members as belong to it-without which the freedom of election were not entire; and that the chancery, though a
standing court under your majesty, be to send out these writs and
receive the returns, and to preserve them, yet the same is done
only for the use of Parliament; over which neither the chancery,
nor any other court ever had, or ought to have, any manner of
jurisdiction."
The strain of such high principles, in a body which had addressed
so much fulsome flattery to James, in the first acts of the Parliament, may be conceived; and in the session of 1606 the Commons
receded so far as to expel a member at the king's dictation. The
circumstances were as follows: Sir Christopher Pigott, having
introduced into a speech some by-matters of invectives against the
Scotch and the Scottish nation, the house was so amazed at the
speech that they took no notice of it at the time, nor until three
days afterward, when they received a message from the king saying,
" how much he did mislike and tax the neglect of the house, in that
the speech had not been interrupted in the instant, and the party
committed before it became public, and came to his highness's ear."
The house sent the sergeant-at-arms for the offender: but after
all, they said, they knew not what way to censure him for it; for
freedom of speech in their house was a darling privilege. But it
was resolved to expel him; and on his knees he received from the
speaker the judgment of the house, committing him to the Tower




288               THE STUARTS. JAMES I.
during the pleasure of the house, and dismissing him from his place
as knight of the shire.
Nevertheless the growing boldness of the Commons required
from the king a counter assertion of his authority and principles
of government, and, in a speech with which he opened the sessions
of Parliament of 1610, he declared these in the highest strain of
divine right. The contest, now commenced between prerogative
and Parliament, was, in this reign, carried on by speeches, or state
papers-the protocols, as it were, which preceded the declaration
of actual war-and it is in these we must look for the pretensions
and demands of the contending parties.  From  the long and
pedantic speeches of James, a few extracts will show his view of
his royal prerogative and position. " The state of monarchy is the
supremest thing upon earth; for kings are not only God's lieutenants, and sit upon God's throne, but, even by God himself, they
are called gods. Kings have like power with God: they make and
unmake their subjects; they have power of raising and casting down;
of life and death; are judges over all their subjects, and in all
causes, and yet accountable to God alone." He admits that " a king
is bound to protect his people, and to govern them according to
hislaws; and therefore a king governing in a settled kingdom,
leaves to be a king, and degenerates into a tyrant, as soon as he
leaves off to rule according to his laws;... and they that persuade them to the contrary are vipers and pests, both against them
and the commonwealth; yet their punishment is with God, and no
Christian man ought to allow any rebellion of people against the
prince."  He concludes with this climax of divine right: "C That
as to dispute what God may do is blasphemy, so is it sedition in
subjects to dispute what a king might do in the height of his
power; but just kings will ever be willing to declare what they
will do, if they will not incur the curse of God. I will not be content that my power be disputed upon; but I shall ever be willing
to make the reason appear of all my doings, and rule my actions
according to my laws."
These high pretensions did not intimidate the Commons, who,
in this session, called in question a proceeding of the king's in
relation to the custom of tonnage and poundage. An act of his




THE STUARTS. JAMES I.                  289
first Parliament granted to' James the subsidy of tonnage and
poundage.for his life; but afterwards, by his own sole authority,
he increased the duty on currants from two shillings and sixpence
to five shillings per hundred weight. This being an imposition
without the consent of Parliament, Bates, a Turkey merchant,
refused payment, and he was prosecuted by the crown. The
Court of Exchequer, subservient to the crown, had justified the
imposition on the principle of the divine right of kings, and their
superiority to all laws which they had not concurred in enacting.
In the session of 1610, the Commons, although forbidden by the
king, remonstrated against the imposition, and excused themselves
from compliance with his command not to enter upon the matter,.
by declaring that they claimed it "as an ancient, general, and
undoubted right of Parliament to debate freely all matters which
do properly concern the subject, which freedom of debate being
once foreclosed, the essence of the liberty of Parliament is withal
dissolved." And as to the imposition and judgment in the exchequer, after premising " that the policy and constitution of the
kingdom appropriates unto the kings, with the assent of Parliament, as well the sovereign power of making laws, as that of taxing,
or imposing upon the subjects' goods or merchandises, as may not,
without their consents, be altered or changed; " they say that
"finding that your majesty, without advice or consent of Parliament, hath lately, in time of peace, set both greater impositions,
and far more in number, than any your noble ancestors did ever in
time of war-have, with all humility, presumed to present this
most just and necessary petition to your majesty, that all impositions set without the assent of Parliament, may be quite abolished
and taken away; and that your majesty, in imitation likewise of
your noble progenitors, will be pleased that a law be made during
this session of Parliament, to declare that all impositions set, or
to be set upon your people, their goods and merchandises, save
only by common consent in Parliament, are and shall be void."
The Commons followed up their protest with a bill abolishing impositions; but it was thrown out of the upper house.
The king's high notions of prerogative found a supporter in
Dr. Cowell, a clergyman, who published a book called " The In13




290               THE STUARTS. JAMES I.
terpreter," dedicated to Archbishop Bancroft. It was rumored
that the king had spoken favorably of the book, and the indignation of the Commons was roused.  It must be admitted that the
royal prerogative was asserted in an extravagant form.  The
author's principles were these: 1st. That the king was solutus
a legibus and not bound by his coronation oath.  2d. That it
was not ex necessitate that the king should call a Parliament to
make laws, but he might do it by his absolute power; for voluntas
regis was lex populi.  3d. That it was a favor to admit the consent of his subjects in giving of subsidies. The Commons sent a
message to the Lords that they had noticed Cowell's book; which,
as they conceived contained matters of scandal and offence towards
the high Court of Parliament, and was otherwise of dangerous
consequence and example. Conferences were held between the Lords
and Commons, and the king called the author before him, and
heard his defence of his doctrines.  Hle afterwards transmitted his
judgment to the Lords to be communicated to the Commons; but
it never was communicated, and the matter dropped, the Commons
probably thinking that their remonstrance was sufficient.
The Commons in the same Parliament, when asked for a subsidy, gave priority to their grievances in ecclesiastical and temporal
concerns. They complained of the high commission court, and of its
proceeding to fine and imprisonment, powers beyond its jurisdiction.
They disputed the king's power to make or alter laws by proclamations: they said that there was nothing more precious than to be
governed by the certain rule of law, and not by any uncertain or
arbitrary form of government....."  They asserted " the indubitable right of the people of this kingdom not to be made subject
to any punishment that should extend to their lives, lands, bodies,
or goods, other than such as were ordained by the common laws
of this land, or the statutes made by their common consents in
Parliament; and they pointed out that proclamations had of late
years been more frequent, extending not only to the liberty and
property of men, but altering the old laws and making new-even
when the latter had been rejected in the same session of Parliament, and imposing penalties and punishments, so that a general
fear was conceived and spread amongst the people, that proclama



THE STUARTS. JAMES I.                  291
tions could by degrees grow up and increase to the strength and
nature of laws."
Two great measures-which, however, were not carried out in
this reign-occupied much of the attention of this Parliament.
The first was the union of England and Scotland as one nation
under the same Parliament and government, which the king was
extremely anxious to bring about; expressing his desire that as
there was unlU8 rex, so there might be unus grex, and una lex, one
king, one country, one law. In this, however, he was not cordially met by Parliament.  The other measure was the abolition of
the feudal revenues of the crown, which the Commons desired, and
for which they were willing that the king should receive an adequate compensation. This affair acquired the name of the great
contract between the king and people. James sent a message to
the Lords, offering to accept a commutation of ~200,000 yearly.
The Commons, after contending for ~180,000, at length came up to
the price demanded; but while the Lords were striving to carry
through the contract on the part of the king, the Commons suddenly changed their minds, from a feeling, it is supposed, that they
could have no security for the performance of the arrangement,
from the laxity of the prevailing doctrines of divine right. The
king was displeased, and dissolved the Parliament, with no good
humor on either side.
The failure of the great contract, and the dissolution of
Parliament without the grant of a supply, left James in great
embarrassment. He was not involved in war, but the supply of
his court and favorites required large sums of money. Its effect
upon the people is described as beneficial.  "Freedom from war
made riches flow; no taxes anyways burdensome-the grant of
subsidies during this king's reign being but a poor pittance compared with those of Elizabeth. How he kept up his estate and
expense of court is a secret." Various devices were adopted to
raise money for the royal treasury. A new order of dignity-that
of baronets-was invented, for patents to which a fee of ~1,000
was paid. The current value of the gold coin was raised; and a
lottery, the first drawn in England, was instituted.
These resources proving insufficient, and the king's necessity




292               TEIE STUJARTS. JAMES I.
being great, be was induced again to try the effect of a. Parliament.
He was strongly urged to do so by Sir Francis Bacon, who,
seconded by others of the king's ministers and courtiers, undertook to assemble such a House of Commons, and so to manage
it when assembled, as that it should be subservient to the king's
w-ishes.  These therefore got the name of undertakers.
Tile Parliament met on the 5th of April, 1614, but the scheme
was eminently unsuccessful. The Commons passed a unanimous
vote against the king's right of imposing taxes without the consent
of Parliament; and they desired a conference with the Lords
touching the point of impositions. The Lords desired the opinions
of the judges on the subject, in order to regulate their answer to
the Commons: but the judges, headed by Sir Edward (Lord) Coke,
declined to give an opinion, on the ground that the question might
come before them judicially; and the Lords, unable to settle a satisfactory answer, sent a message to the Commons declining the conference. The Commons thereupon declared that they considered
a great wrong had been done to them, which they had so taken to
heart that they had determined to forbear all parliamentary matter, until they might receive a different answer from the Lords.
This threat was directed against a bill of supply, which the king's
secretary had introduced into the lower house.  The Lords, to
whom the king had sent a commission to dissolve, gave the Commons time to reconsider their resolution; but on the 7th of June,
there being no change, the Parliament was dissolved. Not a single
bill was passed in this Parliament.
Six years elapsed before another Parliament was called; and
during that time the king and his ministers supported the court
and state from the ordinary resources, or by such loans and benevolences as they could procure.  This period is described as the
" halcyon days in England, no taxes being now paid, trade open
to all parts of the world, a profound peace reigning everywhere;"
but in 1620, this quietude was disturbed by a war which broke out
in Germany, by which Frederic, Count Palatine of the Rhine, who
had married the king's daughter, the princess of England, was
dispossessed of all his hereditary dominions. James's pacific tem-r
per was roused to revenge his son in law, and to recover his terri



THE STUARTS. JAMES I.                  293
tories: and the inclination of the people being in favor of the
support of the Protestant interest in Germany, he ventured to call
a Parliament.
It met on the 30th of January, 1620-'1, and was opened by a
rather lugubrious speech from the king, in which he humbled hiimself in a manner inconsistent with high prerogative principles.
He said to them, " I have often piped to you, but you have not
danced; I have often mourned, but you have not lamented."
He asks, " WVhy are you called?" and replies, " To advise the
king in his urgent affairs; to give him your best advice in such
errands as he shall ask of you, or you shall think fit to ask his
advice in." To the House of Commons he said, " You are the
authors of sustenance to the king, to supply his necessities, and
this is the proper use of Parliaments." " The main errand, to
speak the truth, which I have called you for, is for a supply of
my urgent necessities." He reminds them of the eighteen years
of peace they had enjoyed, " and yet, with these eighteen years, I
have had less supplies than many kings before. The last queen
had what came, by computation, to ~135,000 a year at least. I
had never above four subsidies and six fifteenths."  He told them
that " bis dat qui cito dat; " that in his first Parliament he was
led by the old counsellors he found, which the old queen had left;
and in the last Parliament there came up a strange kind of beasts
called undertakers, a name which in his nature he abhorred, and
which had caused a dissolution.
Mr. Secretary Calvert put the house in mind of what the Parliament was principally called for; and it was agreed that the
occasion was more pressing than any since the recovery of the Holy
Land. But the Commons were in no hurry to supply the king's
necessities, and Sir Edward Coke moved for a committee of the
whole for grievances; sarcastically saying, that "the remedying
of them woulid encourage the house and enable them to increase
the supply." The committee was appointed, and the supply was
deferred; but the Commons, who were favorable to the recovery
of the Palatinate, and had assented to a resolution encouraging
the king to attempt it, passed a subsidy bill, and received the thanks
of the king for their cheerfulness in passing it.




294               THE STUARTS. JAMES I.
Parliament had sat several months, and many bills had been introduced, but none had been brought to a conclusion, when the
House of Commons incurred the displeasure of James. On the
28th of May the lord treasurer announced that the king intended
to adjourn the Parliament, and to adjourn rather than prorogue:
and the judges, on being consulted, announced their opinion that
the effect of an adjournment by royal commission was to reserve
all bills not passed, in the same state, until their next meeting.
The Commons urged the Lords to join them in a petition to prevent
the adjournment, and in a conference expressed " their grief and
passion that they could not perform what they had promised for
the good of the commonwealth." But the king was not to be
moved from his determination. He attended the House of Lords
to adjourn the Parliament, affirmed that if the Commons had
behaved with humility, he would have granted them ten days
longer, but that now he would not yield to their requests. Yet, if
the Lords thought ten days more would be of advantage, he would
grant it to them.  The Lords thereupon had a conference with the
Commons, but the latter indignantly refused to ask for further adjournment.
On the reassembling of Parliament, on the 20th of November
following, a session commenced, in which the struggle between the
king and Commons reached its climax. After a speech by the
lord keeper Williams, the lord treasurer urged the king's wants;
declared that the two subsidies which had been granted by the
Parliament had been spent about the Palatinate; promised that
future supplies should be wholly employed for the recovery of the
Palatinate; and ended by expressing a wish " that the Commons
would so handle this business as to make his majesty in love with
parliaments."
The Commons were in no haste to grant supplies, but went upon
the old topic of grievances. The principal of these was the danger
to the established religion which they apprehended from the intended match between Prince Charles and the Infanta of Spain,
then publicly talked about. They drew up a petition, to be presented to the king, in which they pointed out the evils which, they
believed, would fall on the nation from the Spanish match. The




THE STUARTS. JAMES I.                  295
king, having received a copy of the petition before the Commons
had time to present it in form, was so displeased, that he sent a
letter to the speaker, forbidding it to be sent to him. He said, in
his letter, that he had heard by reports, that some fiery and popular spirits of the House of Commons had argued and debated
publicly, of matters far above their reach and capacity, tending to
his high dishonor, and breach of prerogative royal. He commanded that " none should presume to meddle with anything concerning
his government or deep matters of state; " adding that " we think
ourself very free and able to punish any man's misdemeanor in
Parliament, as well during the sitting, as after, upon any occasion
of any man's insolent behavior that shall be ministered unto us."
The Commons despatched messengers to bring back the members whom they had sent to deliver the remonstrance, and they
drew up a second petition or remonstrance, which they sent along
with the former by twelve of their members. The latter opens
with the expression by the Commons, of loyal and submissive feelings toward the king, and proceeds to justify their having taken
into consideration (being invited to do so by the king) both the
war abroad and the security of our peace at home. They did not,
they said, assume to encroach or intrude upon the sacred bounds
of the royal authority, " to whom, and to whom only, it belonged
to resolve of peace or war, and of the marriage of the prince his
son. But as his humble subjects, representing the whole commons
of the kingdom, they resolved, out of their cares and fears, to demonstrate these things to his majesty; and that without expectation of any answer than what at his good pleasure and in his own
time should be held fit." They besought him to receive their former declaration, and added, " But whereas your majesty, by the
general words of your letter, seems to restrain us from intermeddling with matters of government, in particulars which have their
motion in courts of justice —the generality of which words might
involve those things which are the proper subjects of parliamentary
occasions and discourse-and whereas your majesty doth seem to
abridge us of the ancient liberty of Parliament, for freedom of
speech, jurisdiction, and just censure of the house, and other proceedings there-.... the same being our ancient and undoubt



296                THE STIUARTS. JAMES I.
ed right, received from our ancestors, without which we cannot
freely debate, nor clearly discourse of things in question before us,
nor truly inform your majesty,.... -we are, therefore, now
again enforced, in all humbleness, to pray your majesty to allow
the same."'
The king sent the Commons a written answer on the 11th of December, 1621, drawn up in his usual scholastic style, and often
treating the positions of the Commons sarcastically and contemptuously.  Referring to their request to him  not to trust reports
against them, he said, " We wish you to remember that we are an
old and experienced king, needing no such lessons; being in our
conscience, freest of any king alive, from hearing or trusting idle reports; which many in your house could bear witness, if ye would
give as good ear to them as you do to some tribunitial orators
among you.... In your petition you usurp upon our prerogative royal, and meddle with things far above your reach; and then,
in a conclusion, you protest the contrary; as if a robber would take
a man's purse, and then protest he meant not to rob him. For
first you presume to give us your advice concerning the match of
our dearest son with some Protestant (we cannot say princess, for
we know of none of these fit for him), and dissuade him from his
match with Spain, urging us to a war with that king; and yet, in
the conclusion, forsooth, ye protest ye intend not to press upon
our most undoubted and royal prerogative."
Adverting to their excuse of not determining anything concerning the match, but only to tell their opinion, and lay it at his
feet, he desired to know "how ye could have presumed to determine on that point, without committing high treason." And as to
the receiving of their former petition, he justly rejected that suit;
"' for what have you left unattempted in the highest points of sovereignty in that petition of yours, except the striking of coin?
For it contains the violation of leagues, the particular way how to
govern a war, and the marriage of cur dearest son.  These are unfit things to be handled by Parliament, except yo;r king should
require it of you. For who could have wisdom to judge of things
of this nature, but such as are daily acquainted with the particulars of treaties, and of the variable and fixed connection of affairs




THE STUARTS. JAMES I.                   297
of state, together with the knowledge of the secret ways, ends, and
intentions of princes in their several negotiations? Otherwise, a
small mistake of matters of this nature may produce more effects
than can be imagined.  And, therefore, ne sutor ultra erepidarn.
And besides, the intermeddling of Parliament with peace or war,
and the marriage of our dearest son, would be such a diminution
to us and our crown in foreign countries, as would make any
prince neglect to treat with us, except they might be assured by
the assent of Parliament. We cannot omit to show you how
strange we think it, that you think we meant to restrain you of
your ancient privileges in Parliament. Although we cannot allow
of the style calling it your ancient and undoubted right of inheritance,
but could rather have wished that ye had said that your privileges
were derived from the grace and permission of our ancestors (for
most of them grew from precedents, which shows rather a toleration than an inheritance), yet we are pleased to give our royal assurance that, so long as you contain yourselves within the limits
of your duty, we will be as careful to maintain your lawful liberties and privileges as ever any of our predecessors were; nay, as to
preserve our own royal prerogative."
The Commons met the king's answer (which even the lord
keeper considered so harsh that he wished it to be mitigated) by
giving over all business; and foreseeing that the king, despairing
of supply, would dissolve the Parliament, they resolved to place on
record a declaration of their privileges.  They, therefore, drew up
a bold and comprehensive protestation, in vindication of their
privileges, which was recorded in the journals of the house on the
18th of December.  On the same day the prince, by virtue of a
commission from the king, adjourned the Parliament to the 8th
of February following.  This great constitutional protestation is as
follows:
" The Commons now assembled in Parliament, being justly occasioned thereunto concerning sundry liberties, franchises, privileges, and jurisdictions of Parliament, do make this protestation
following: That the liberties, franchises, privileges, and jurisdictions of Parliament, are the ancient and undoubted birthright and
inheritance of the subjects of England, and that the arduous and
13*




298               THE STUARTS. JAMES I.
urgent affairs concerning the king, state, and the defence of the
realm and of the Church of England, and the maintenance and
making of laws, and redress of mischiefs and grievances which
daily happen within the realm, are proper subjects and matter of
counsel and debate in Parliament; and that, in the handling and
proceeding of those businesses, every member of the house of Parliament hath, and of right ought to have, freedom of speech, to
propound, treat, reason, and bring to conclusion the same; and
that the commons in Parliament have like liberty and freedom to
treat of those matters, in such order as in their judgment shall
seem fittest; and that every member of the said house have like
freedom from all impeachment, imprisonment, and molestation
(other than by the censure of the house itself), for or concerning
any speaking, reasoning, or declaring any matter or matters, touching the Parliament or Parliament business; and that if any of the
said members be complained of, and questioned, for anything done
or said in Parliament, the same is to be showed to the king, by the
advice and assent of all the commons assembled in Parliament, before the king give credence to any private information."
The king sent for the journals, and he " rent out the protestation with his own hand; " and afterwards published a declaration,
declaring it invalid, annulled, void, and of no effect. In a subsequent proclamation he reviewed the proceedings of the Parliament,
and attributed its failure to " some ill-tempered spirits, who by
their cunning diversions had imposed on him the necessity of discontinuing it." But he stated his intention to govern his people
in the same manner as his predecessors; and in due time to call
another Parliament. The " ill-tempered spirits " to whom the king
referred, were soon made known, by the steps taken to punish
them. Some were committed to the Tower; some were imprisoned or confined; some, by a sort of honorable banishment, were
sent to Ireland as commissioners, under a royal commission, to inquire into sundry matters for his majesty's service; and a few
were raised to the peerage.
A new Parliament met on the 19th of February, 1623. The
first period of its sitting was occupied chiefly with the treaties with
Spain touching the proposed match of the Prince with the Infanta,




THE STUARTS. JAM3ES I.                  299
which was speedily broken off. They, moreover, sanctioned the
king's entering into a war for the recovery of the Palatinate, for
which they granted the largest aid ever given by Parliamentthree entire subsidies and three fifteenths-stipulating only for a
commission to see that the money was appropriated according to
the purpose of Parliament.
But the great subjects which occupied the attention of this Parliament, were the grants of monopolies, and the power of dispensing with penal laws and forfeitures exercised by the crown. In
the time of Elizabeth, Parliament had remonstrated against the
injury done by monopolies to trade and manufactures; but in this
reign they were still continued to a great extent. The crown now
also assumed as its prerogative a power, called the dispensing power,
to dispense with the action of laws; and by this prerogative it exempted favored individuals from the operation of penal laws, and
from the forfeitures which a breach of them demanded.  By another nearly similar prerogative, called the suspending power, it
made royal grants to favored individuals, contrary to the terms of
existing statutes, by inserting in the grants or letters patent a non
obstante clause-i. e., notwithstanding the particular statute which
the grants contravened.  It also made to its friends and courtiers
grants of fines and penalties, which had accrued, or were expected
to accrue to the crown, from persons convicted, or expected to be
convicted under penal statutes; and of the profits to be derived
from escheats.
No prerogatives could be more unjust or more injurious than
these; and they were effectually ended by an act of this Parliament. Its title is, " An Act concerning Monopolies, and Dispensations with Penal Laws and the Forfeitures thereof." In its preamble it refers, as the foundation of its enactments, " to a royal judgment which King James did, in 1610, publish in print to the whole
realm, and to all posterity, that all grants of monopolies, and of the
benefit of penal laws, or of power to dispense with the law, or to
compound for the forfeiture, were contrary to the laws; —which
royal declaration was truly consonant and agreeable to the ancient
and fundamental laws of the realm."
It, therefore, declared that all monopolies, commissions, grants,




300                THE STUARTS. JAMES I.
licenses, charters, and letters patent for the sole buying, selling,
making, working, or using anything within the realm, or of any
other monopolies; or of power, liberty, or faculty to dispense with
any others; or to give license or toleration to do, use, or exercise
anything against the tenor or purport of any law or statute; or to
give or make warrant for any such dispensation, license, or toleration
to be had and made; or to agree or compound with any others for
any penalty or forfeitures limited by any statute; or of any grant
or promise of the benefit, profit, or commodity of any forfeiture,
penalty, or sum of money that was or should be due by any statute, before judgment thereupon had; and all proclamations, inhibitions, restraints, warrants of assistance, and all matters and things
whatsoever, any way tending to the strengthening, furthering, or
countenancing of the same or any of them-were altogether contrary to the laws of the realm, and so were, and should be, utterly
void, and in no wise be put in use or executed.
This declaration of the law is enforced by provisions for making
monopolies impracticable; and one provision saves from the operation of the act, and declares that it " shall not extend to letters
patent and grants of privilege for the term of fourteen years and
under, thereafter to be made, of the sole working or making of any
manner of new manufactures within this realm, to the true and first
inventor or inventors of such manufactures, which others, at the
time of making such letters patent and grants, shall not use." It
is under this exception from the act, that the British crown has exercised, and now exercises, the right of granting letters patent for
new inventions.
With this great act of Parliament we leave the reign of James.
The pretensions of prerogative were now clearly understood, and
had been manfully resisted.  The seeds of civil discord had been
sown; and in the following reign of the unfortunate and misguided
Charles, a harvest of contention was to be gathered, to be followed,
at a later and a better time, by liberty and peace. In their disputes
with James, no lover of the people will admit that Parliament
made one false or imprudent step.  They were in all their acts
calm, and, though firm, conciliatory and respectful. In religion, it
is true, they were not yet advanced to our opinions in regard to




THE STUARTS. JAMES I.                   301
toleration.  But as yet, at least, they had not fallen into the hands
of Puritanism. In the next reign we shall perceive how they
preserved the same course of consistent and conservative determination to preserve their rights, and how they had already won the
amplest guarantees of every right they had asserted, when the
pestilent viper of Puritanism, whose clamorous love for freedom is
but a devilish, hypocritical mask, assumed to hide its lust of domination, carried on its agitations, till it overthrew the constitution
of the kingdom and set up the gentle rule of Cromwell.




CHAPTER VIII.
THE STUARTS CONTINUED.-CHARLES I.-FIRST THREE PARLIAMENTS TO THE PETITION OF RIGHT.
INTRODUCTORY OBSERVATIONS-FIRST PARLIAMENT-CHARLES'S SPEECH-TONNAGE
AND POUNDAGE GRANTED FOR ONE YEAR BY THE COMMONS-ILLEGAL COLLECTIONS OF THEM BY CHARLES-HATRED AGAINST BUCKINGHAM-DISSOLUTION OF
PARLIAMENT —EXACTIONS AND FORCED LOANS-SECOND PARLIAMENT —HAUGHTINESS OF CHARLES-PREPARATION OF THE COMMONS TO IMPEACH BUCKINGHAM
-COMMONS PASS SUPPLY BILLS TO BE GRANTED WHEN GRIEVANCES HAVE BEEN
HEARD-UNCONDITIONAL SUPPLY DEMANDED-COMMONS' REMONSTRANCESIMPEACHMENT OF BUCKINGHAM-IMPRISONMENT OF DIGGS AND ELLIOTABRUPT DISSOLUTION OF PARLIAMENT-RENEWED EXACTIONS AND IMPRISONMENTS-EXPEDITION TO ROCHELLE-THIRD PARLIAMENT —UNCONCILIATORY
SPEECH OF CHARLES-COMPLAINT OF GRIEVANCES-SIR PETER HAYMAN-RESOLUTlONS OF THE COMMONS-ADDRESS TO THE KING-THE PETITION OF RIGHT
FIRST AGITATED-CHARLES ENDEAVORS TO PREVENT DISCUSSION, OFFERING
HIS ROYAL PROMISE TO MAINTAIN THE CHARTERS-PERMISSION FOR A BILL
GIVEN-SPEECHES OF ELLIOT AND COKE-CONFERENCE WITH THE LORDSTHEIR PROPOSITION-OUTLINE OF THE PETITION-OHARLES'S AMBIGUOUS ASSENT
-CLERICAL POLITICS-DR. MAINWARING-CHARLES FORBIDS CENSURE OF
MINISTERS-EXCITEMENT IN THE HOUSE-EXPLANATORY MESSAGE FROM THE
KING-REGULAR AND FINAL PASSAGE OF THE PETITION OF RIGHT-JOY OF
THE PEOPLE.
CHARLES I. ascended the throne on the 27th of March, 1625.
His reign is, perhaps, the most exciting in the constitutional history
of England: in it the great contest between prerogative and freedom was brought to decision by the ulztia ratio of war, followed
by the execution of the king. These events long divided the nation into two parties; one of which deprecated the war as a great
rebellion, and the execution of the king as sacrilegious parricide:
while the other justified the war, as a national and just resistance




THE STUARTS. CHARLES I.                 303
of arbitrary and illegal power; and the king's execution as the
lawful punishment of a tyrant.
It is not necessary to our purpose to follow the course of that.
memorable history through the civil war; but the contest between
Charles and his parliaments, prior to the civil war, abounds with
events and circumstances that must not be overlooked.  The commons then asserted and maintained principles of constitutional freedom with indefatigable perseverance and boldness; and transmitted
them to posterity as privileges of Parliament, or in general statutes.
Of the latter, the most important is that known as the PETITION OF
RIGHT; a landmark of the Constitution, inferior only in importance
to Magna Charta and the Confirmatio Chartarum of Edward I.
It was the constitutional result of the first three parliaments of
Charles; but unlike its great predecessors which were the work of
the barons, this proceeded from the commons.
The characteristic feature of Charles's reign, in the relation between him and his first three parliaments, was, on his part, a constant endeavor to obtain supplies without diminishing the absoluteness of his prerogative; on their part, to make the supplies the
condition of concessions in favor of civil liberty.  He was but
twenty-five years of age when he ascended the throne; and, as
might have been expected from his education under his father
James, he was imbued with the highest notion of his royal power
and prerogative. But he had to encounter in Parliament the same
band of patriots that had so boldly struggled with his father —the
most able and determined men in the nation. Against them,
Charles, firm in " the divinity that doth hedge a king," pitted his
friend and favorite the Duke of Buckingham, as his chief minister,
a nobleman who had been popular in the latter Parliament of
James, but of " whose exorbitant power and abusive carriage " the
Parliament of Charles had conceived the greatest apprehension and
dislike.
Charles, moreover, placed himself in a disadvantageous condition
for a contest with Parliament, by adopting the war with Spain,
which his father had threatened, but which was not yet commenced,
for the recovery of the Palatinate; and from which his accession
gave him an excuse for withdrawing. By entering into war he




304              THE STUARTS. CHARLES I.
increased his necessities to an extent so great that they could not
be supplied by the ordinary means of the crown, which had been so
reduced as to be barely sufficient for peaceful times; on the other
hand, the people gaining a positive advantage by the withholding
of subsidies, their representatives in Parliament could coolly and
deliberately pursue their policy of requiring redress of grievances
as the condition of supply.
CHARLES'S FIRST PARLIAMENT.
Charles was anxious to assemble Parliament immediately after
his accession, in order to obtain supplies for the war; but a plague
was raging, and his marriage with the Princess Henrietta Maria of
France occupied his attention. Two days after his marriage, on
the 18th of June, 1625, Parliament assembled. He opened it in a
good-humored speech, in which, referring to the votes of the parliaments of James, he held the present Parliament responsible for the
war; and he reminded them that he was employed by Parliament
to advise his father to break off treaties with Spain for peace, and
his own match with a Spanish princess.
He was followed by the lord keeper Williams, who explained
that the king's main reason for calling the Parliament was to
remind them of their engagements for the recovery of the Palatinate and to let them understand that the supplies granted in the
last Parliament of James were spent (whereof the account was
ready), together with as much more of the king's own revenue. He
added that the king desired them to bestow this first meeting on
his, or rather on their actions; and the next should be theirs, to be
applied to domestic purposes, as soon and as long as they pleased.
The Commons tried to procrastinate. The plague was raging;
and they complained that they were distracted from business, by
the tolling of the bell every minute whilst they were speaking.
They petitioned the king for a recess " this sickly season."  He
answered that as soon as he should hear that they were ready with
their bills, he would put an end to the session. Next day the
Commons passed a bill, granting two entire subsidies. They also
passed a bill granting tonnage and poundage for one year, instead




FIRST THREE PARLIAMENTS TO PETITION OF RIGHT.  305
of for life, and thus opened an unceasing dispute between the king
and the Parliament. The Lords, on the ground that former grants
to the king's predecessors had been for life, refused their consent
to the bill, and Charles caused the duties to be collected without
any parliamentary authority.
The Parliament adjourned on the 11th of July, on account of
the plague; it reassembled in August at Oxford, in the great hall
of Christ Church. The king again addressed them, and reminded
them of their obligations to provide for the war.  His secretaries
informed the House of Commons that the two subsidies they had
granted were either spent or anticipated, and they moved for a further supply of two subsidies and two fifteenths. The Commons
debated this motion at great length, without coming to any decision; their antipathy to the Duke of Buckingham influencing them
against the king. The debate resulted in no supply, and after
various matters had been agitated, Charles, believing there was no
present intention to grant a supply, resolved to show his displeasure by dissolving Parliament.
By its dissolution the ordinary constitutional means of providing money to defray the charge of the fleets and armies were cut
off. Recourse was therefore had to the old expedient of compulsory gifts and loans. Letters were addressed in the king's name to
the lord lieutenants of counties, directing them to collect as many
persons' names as might be of ability to furnish the king with
money; but they were cautioned not to deal with noblemen, nor
with the clergy, who were to be left to their metropolitans. The
privy seal followed the return, and left the involuntary contributor
little room for escape.
SECOND PARLIAMENT.
Although these loans were industriously pressed, they were not
sufficiently productive to meet the king's urgent necessities, and he
resolved to call another Parliament, which assembled on the 6th of
February, 1625-'6, still in the first year of his reign. From the first,
it was hostile to him.  Charles in no way attempted to conciliate
the Commons.  His view of his relation to the House of Commons




306              THE STUARTS. CHARLES I.
was that he was an absolute prince; and that if the Commons, who
assembled by his permission, did not perform their duty of raising
supplies with the least inconvenience to the people, he was empowered by his prerogative to tax them without consent of Parliament.
The Commons had practically admitted this theory in the reigns of
the Tudors; but the spirit and freedom of the Plantagenet period
were now revived; and, led by men of commanding intellect and
great determination of purpose, the Commons presented an unwavering opposition to every illegal or enlarged exercise of the royal
prerogative. Sir Thomas Coventry, the new lord keeper, opened
the Parliament in a high prerogative speech. The Commons, on
the other hand, widened the difference between the king and themselves by impeaching the Duke of Buckingham; and whilst they
were preparing materials for the charges, the king sent a letter to
the speaker, urging for a full and perfect answer of what they would
give for his supply, according to his expectation and their promises.
The Commons, full of their intended impeachment of the Duke of
Buckingham, answered "that because they could not doubt that
the king would be pleased graciously to accept the faithful and
necessary information and advice of his Parliament (which could
have no end but the king's honor and safety of his realm) in discovering the causes, and proposing the remedies, of those great evils
which had occasioned his wants and his people's griefs; they therefore in full confidence and full assurance of redress therein, did
with one consent propose that they really intend to supply and
assist the king, in such a way, and in so ample a manner, as might
make him safe at home, and feared abroad."
Charles received their observations as directed against Buckingham, and he sent a haughty reply to the speaker. After thanking
the Commons for their answer, he observed that he must let them
know that he would not allow any of his servants to be questioned
among them, much less such as were of eminent place and near
unto him. He concluded by saying, " I wish you would hasten my
supply, or else it will be worse for yourselves; for, if any ill happen, I think I shall be the last that shall feel it; "-a threat which
shows that Charles had not calculated the difficulty of his position




FIRST THREE PARLIAMENTS TO PETITION OF RIGHT.  307
in a contest with the Parliament, or that he confidently reckoned
on obtaining sufficient money by force of his prerogative.
The Commons resolved that three subsidies and three fifteenths
should be granted to the king, payable at three different times; the
bill to be brought in when they had presented their grievances and received the king's annwer to them.  That resolution, which was an
indefinite procrastination of the supply, gave the king great offence;
and on the following day he sent a message to both houses, requiring their attendance at Whitehall on the next day. He addressed
them in a speech in which he complimented and thanked the Lords
for their care of the kingdom, and expressed his sorrow to the Commons that he might not justly give the same thanks to them; but
he must show them their errors and, as he might call it, their unparliamentary proceedings. The lord keeper, as on the former
occasion, enforced the king's speech, requiring, as their final answer,
what further supply they would add to that they had already
agreed on; and that to be without condition either directly or indirectly, for the supply of the king's great and important affairs.
The king's rebukes and his lord keeper's demands called forth
a remonstrance from the Commons to the king, which was presented
to him on the 5th of April by a select committee. They justified
their proceedings against Buckingham by one of those declarations
of rights which had now become usual on important occasions; by
which, as they could not resist, they recorded on their journals
their protest against the prerogatives assumed by the king. They
declared "' that it had been the usual, constant, and undoubted
right and usage of Parliament to question and complain of all persons, of what degree soever, found grievous to the commonwealth,
in abusing the power and trust committed to them by their sovereign. And as to the supply, that though it had been the long
custom of parliaments to handle the matter of supply with the last
of their businesses; yet, at that time, out of extraordinary respect
to his person and care of his affairs, they had taken the same into
speedy consideration, and had agreed to a resolution for a present
supply, as was well known to the king."
Having thus asserted their Constitutional rights, the Commons
proceeded to the consideration of the supply. It was pointed out,




308              THE STUARTS. CHARLES I.
on the part of the king, that the subsidies had decreased in productiveness, and therefore that one subsidy and one fifteenth more
ought to be given, payable after the three agreed to had been collected. A bill for a grant of tonnage and poundage was also in the
course of preparation by the house; but concurrently with it, the
house ordered to be drawn up a remonstrance to the king against his
taking those duties without grant of Parliament. The addition of
a fourth subsidy was agreed to, and when the account of the whole
grant was signified to the king, he said " that he accepted it in
very good part, but desired such speed might be used in it that it
might do him good."
It would not promote the object we have in view, to enter into
the details of the impeachment of Buckingham which now took
place. The charges against him were founded on the abuse of his
influence with the king, and thus obtaining a plurality of appointments-trafficking in offices-and the abuse of his power as lord
high admiral; and they conclude with a charge of having given a
posset and a plaister to the late King James in his last illness,
referring to suspicions of poison, which were publicly talked of at
the death of James. These were not treated otherwise than as
personal charges. No constitutional question of ministerial responsibility was involved. But there arose a question of privilege of
constitutional importance, which requires our notice. The Commons presented their charges against the duke to the Lords, and
appointed eight of their most distinguished members to support the
charges before a committee of the upper house. Two of them,
Sir Dudley Diggs and Sir John Elliot, gave offence to the king in
their speeches before the Lords, and he committed them to the
tower.
The Commons resented the imprisonment of their two members,
and resolved to suspend all business till they should be righted in
their privileges.  The Lords came forward to the relief of this
difficulty with the assurance of a large number of the peers that
there had been a misapprehension as to the words used by Sir
Dudley at the conference; and the king being satisfied that Sir
Dudley had not spoken the words imputed to him, he was released
from the tower. On the next day he took his seat in the house,




FIRST THREE PARLIAMENTS TO PETITION OF RIGHT. 309
and made a protestation " that. the words charged on him were so
far from being his words, that they never came into his thoughts."
But the case of Sir John Elliot was not so easily disposed of.
In addition to the freedom of his remarks on Buckingham, he had
used in speaking of him contemptuous expressions.  It was particularly complained that he had spoken of him as " that man."  The
chancellor of the exchequer informed the house that " although the
king disliked the whole manner of his delivery of that which he had
commandment from the house to speak, yet the king charged Sir
John Elliot with things extra-judicial to that authority."  It was
desired that the word extra-judicial should be explained. Mr. Chancellor said it was the king's own word, and therefore he could not
do it. On the 20th of May a motion was made, with apparent
irony, that Sir John Elliot should come and take his seat, having
been charged with high crimes, extra-judicial to that house.  The ministers allowed of his coming, and the vice-chamberlain having repeated the charges, Sir John justified what he had said, as authorized by his instructions from the house. The house resolved that
Sir John Elliot had not exceeded the commission given him in the
late conference with the Lords; and a like resolution was carried
in the case of Sir Dudley Diggs-both without one negative.
The subsidies, which the House of Commons had agreed to, were
a very liberal supply, and, as we have seen, were approved by
Charles, "provided he had them with speed, so that they might do
him good." But several weeks elapsed without any progress towards
completing the grant. Charles, impatient of delay, and, it would
seem, having taken the resolution to punish it by a dissolution of
Parliament, showed his displeasure in a letter to the speaker, which
he desired to be read publicly to the house.  He pointed out that
unless the supply were presently concluded, it would be of little
use; and if by their denial or delay, anything of ill consequence
should fall out, either at home or abroad, he called God and man to
witness that he had done his best to prevent it, by calling his people together to advise with him; by opening the weight of his occasion to them; and by requiring their timely help and assistance in
those actions wherein he stood engaged by their own counsel. The
Commons prepared a declaration by way of answer to the king's




310              THE STUARTS. CHARLES I.
letter. It was agreed to on the 14th of June, and ordered to be
presented to the king by the speaker, attended by the whole house.
But in the mean time the king had determined to dissolve the Parliament; and on the 15th of June the Commons were summoned to
the House of Lords, to hear the royal commission for the dissolution
read. The peers petitioned the king, and offered him their loyal
and faithful advice to continue the Parliament, by which the dangers at home and abroad might be prevented, and his majesty made
happy in the duty and love of his people. The king, angry and
impetuous, answered, " No, not a minute," and the Parliament was
dissolved.
This abrupt and ill-considered measure forced the king upon
the old illegal projects for supplying his necessities. An order in
council commanded all the tonnage and poundage duties to be
levied and paid. A commission was issued to arrange with Jesuits,
popish priests, and recusants, to dispense with the laws and penalties
affecting them, in consideration of money to be paid to the king.
The nobility were applied to; and a loan of ~100,000 was demanded from the city of London. All the sea-port towns were
ordered to fit out ships for the guarding of their own coasts-the
city of London being ordered to set out twenty of the best that lay
in the Thames.
Many persons refused payment of the imposed loan, and were
committed to prison. Amongst these we find the eminent names
of Sir Thomas Wentworth and John Hampden, who were, by an
order in council, removed to prisons distant from their own counties.
Other five gentlemen, so imprisoned, obtained writs of habeas
corpus; but they were remanded to prison by the judges, as being
imprisoned by the command of the king. Sir Peter Hayman,
refusing payment, was called before the council, who sent him on
service to the Palatinate. But the opposition of these eminent
men, on constitutional grounds, did not prevent the compliance of
great numbers of the people, and a large sum was raised. It was
employed in fitting out an expedition for the relief of the Protest
tants of Rochelle. The conduct of the affair was entrusted to
Buckingham, who abandoned the Protestants to the tender mercy
of the French king, and made a descent on the Isle of Rheb.




FIRST THREE PARLIAMENTS TO PETITION OF RIGHT.  311
The expedition was wholly unsuccessful, and the people, finding
themselves at war with both France and Spain, became alarmed at
their defenceless state. A general desire was expressed that Parliament should assemble.  The king held a great council at Whitehall, to which Sir Robert Cotton was called to give his advice. He
advised that a Parliament should be called, at which the king
should endeavor, by a gracious yielding to their just petitions, to
win the people's hearts, which would give him their purses; and
that Buckingham, to remove the people's personal dislike toward
him, should appear as a prominent adviser for calling the Parliament.  " But could it be imagined," says Lord Clarendon, " that
those men would meet again, in a free convention of Parliament,
without a sharp and severe expostulation and inquisition into their
own right, and the power that had imposed upon that right?"
THIRD PARLIAMENT.
A new Parliament met on the 17th of March, 1627-'8, in the
third year of Charles's reign. It had been deemed advisable to
release the persons imprisoned for refusing the loan; and seventyeight, of whom some were chosen into the new Parliament, were released.
Charles opened it in a threatening and unconciliatory speech.
"There is none here," he said, "but knows that common danger is
the cause of this Parliament, and that supply, at this time, is the
chief end of it..... I will use but few persuasions; for if these be
not sufficient, then no eloquence of men or angels will prevail. If
you (as God forbid) should not do your duties, in contributing what
the state at this time needs, I must, in the discharge of my conscience, use those other means which God hath put into my hands,
to save that which the follies of some particular men may otherwise
hazard to lose.  Take not this as a threatening, but an admonition;
for I scorn to threaten any but my equals."
The Commons, as in the preceding Parliament, all took the
sacrament, and at their desire the king appointed a general fast.
The late proceedings furnished them with numerous grievances;
and complaints were made against the Government for billeting of
soldiers upon the people, raising money by loans, and, above all, for




312              THE STUARTS. CHIARLES I.
the imprisonments for refusal of the loan;-and especially for the
violation of the principle of the writ of habeas corpus in the case
of the five gentlemen whom the judges recommitted to prison because it was returned that they were committed by command of the
king. A motion was made for a committee of grievances; and the
utmost concession which the king's secretary could obtain, in the
way of attention to his demand of ships and men for the king's use,
was, that the same committee should take the king's propositions
into consideration. The house went into committee, with instructions to take into consideration the liberty of the subject in his person and in his goods, and also the king's supply. The grievances
were reduced in the debate that followed to six heads: 1. Attendance at the council board; 2. Imprisonment; 3. Confinement;
4. Designation to foreign employment; 5. Martial law; 6. Undue proceedings in matters of judicature.
Sir Peter Hayman described to the house the manner in which
he was dealt with by the council, and sent to the Palatinate. " I
was called before the lords of the council; for what, I knew not;
but I heard it was for not lending on a privy seal. I told them,
if they will take my estate, let them; I would give it up; lend I
would not. They laid to my charge my unwillingness to serve the
king. I said I had my life and my estate to serve my country and
my religion. They told me that if I did not pay, I should be put
upon an employment of service. I was willing. After ten weeks
waiting, they told me I was to go with a lord into the Palatinate,
and that I should have employment there, and means befitting.  I
told them I was a subject, and desired means. Some put on very
eagerly, some dealt nobly. They said I must go on my own purse.
I told them, nerno militat suis expensis.  Some told me I must go. I
began to think, what must I. None were ever sent out in that way.
Lawyers told me I could not be sent.  Having this assurance, I
demanded means, and was resolved not to stir but upon those terms,
and in silence and duty I denied. Upon this, having given me a
command to go, after twelve days they told me they would not send
me as a soldier, but to attend on an ambassador.  I knew that
stone would hit me, therefore I settled my troubled estate and addressed myself to that service."




FIRST THREE PARLIAMENTS TO PETITION OF RIGHT.  313
The debate was continued on the other heads. Confinement was
distinguished from imprisonment, as being the restraint of a subject
to his own house or elsewhere. But (it was said) either was an interference with that liberty which is the right of the subject, and of
which none can be deprived but by the law of the land. The remedy for regaining the liberty of the person when illegally restrained
is the writ of habeas corpus; which was shown in the debates to
be coeval with the statutes passed for the liberty of the subject by
Edward III., cases having been cited of the use of the writ in
that reign; so that the laws which gave liberty of the person were
accompanied by a remedy for regaining it when restrained. Mr.
Selden, at a conference with the lords, explained the mode of procedure; that the writ of habeas corpus is the highest remedy for
him that is imprisoned by the special command of the king, or the
lords of the privy council, without showing the cause of commitment; and if any man be imprisoned, by that or any other authority, this writ is to be granted to him, and ought not to be denied.
It is directed to the keeper of the prison, in whose custody the prisoner is, commanding him that after a certain day, he bring in the
prisoner, with the cause of his detention, and sometimes with the
cause of his caption; and he, with the return, filed to the writ,
brings the prisoner to the bar at the time appointed; and the court
judges of the sufficiency or insufficiency of the return. If they find
him bailable, he is committed to the marshal, the proper officer of
the court, and then afterward delivered to bail. But if it appear
to the court that the prisoner ought not to be bailed, nor discharged
from the prison whence he is brought, then he is remanded and sent
back again to the prison from whence he came, there to continue,
till by due course of law he be delivered.
The debate terminated in the following resolutions, unanimously
agreed to in a committee of the whole house on the 3d of April:
1. That no freeman ought to be committed, or detained in prison,
or otherwise restrained by command of the king, or the privy council,
or any other; unless some cause of the commitment, detainer, or
restraint be expressed, for which, by law, he ought to be committed,
detained, or restrained.
2. That the writ of habeas corpus cannot be denied but ought to be
14




314              THE STUARTS. CHARLES I.
granted to every man that is committed or detained in prison, or otherwise restrained by command of the king, OR THE PRIVY COUNCIL, OR ANY
OTIHER; he praying the same.
3. That if a freeman be committed or detained in prison, or
otherwise restrained by command of the king, privy council, or any
other, no cause of such commitment being expressed, and the same
be returned upon an habeas corpus, granted for the said party,then that he ought to be delivered or bailed.
4. That the ancient and undoubted right of every freeman is,
that he hath a full and absolute property in his goods and estate;
and that no tax, tallage, loan, benevolence, or other like charge,
ought to be commanded or levied by the king or his ministers,
without common assent of Parliament.
On the subjects of these resolutions, the Lords, at the
request of the Commons, appointed a conference, at which
the managers of the Commons were instructed to endeavor to
induce the Lords to join in a petition to the king for a confirmation of these resolutions. But before the conference was
concluded, the Commons, after receiving another message from
the king to hasten the supply, came to a unanimous vote that five
subsidies should be given to the king. This gave Charles great
joy. Mr. Secretary Cook reported to the house the king's acceptance of the subsidies, and the great satisfaction which the vote had
given him. But another message, a few days afterward, urging
the completion of the vote by an act without delay-in which he
cautioned the Commons not to bend themselves against the extension of
his royal power, but to meddle only with pressures and abuses of
power-gave the Commons offence, and they appointed a committee
of ten members to consult on their grievances, and to give their
substance under several heads, as instructions for their speaker to
deliver them to the king in a speech. In these instructions, besides
other matters, it was asserted-That it is the ancient right of
Parliament to dispose of matters there debated in their ownI
method; —that it is their ancient custom to consider grievances
before matters of supply;-that yet, nevertheless, in this Parliament, to express our affection to his majesty, contrary to our ordinary proceedings, we have proceeded to supply as far as we could




FIRST THREE PARLIAMENNTS TO PETITION OF RIGHT.  315
in committee; and, so far from delaying, that, postponing the common and pressing grievances of the nation, we have given precedency
to the supply; joining with it only the fundamental and vital liberties of the kingdom that give subsistence to the subject.
The speaker presented at the same time a petition from the
House of Commons concerning the billeting of soldiers, denouncing
the practice as against the absolute property which every freeman,
by the fundamental laws of the realm, had in his goods and estate.
The petition pointed out in long detail the mischiefs and exactions
arising from the king's subjects being compelled to receive and
lodge soldiers in their houses, and to contribute toward the maintenance of them; the service of Almighty God was greatly hindered,
the people in many places not daring to repair to church, lest in
the mean time the soldiers should rifle their houses; the government
of the country contemned, the officers of justice being resisted and
endangered; the rents of the gentry diminished, as the farmers, to
secure themselves and families from the soldiers' insolence, retired
themselves to places of more secure habitation; husbandmen corrupted; tradesmen and artificers discouraged; markets unfrequented; and robberies, rapes, rapines, murders, and barbarous
cruelties generally complained of-of which few have been so much
as questioned, and fewer punished.
These grievances, under the general title of " The Liberty of the
Subject," occupied the attention of the House of Commons, and,
through their influence, the attention also of the House of Lords,
almost exclusively of all other business, for two months, when the
debates terminated in the celebrated Statute or " PETITION  or
RIGHT."
The king tried to avert the further consideration of this matter
by the Commons, by offering his royal word to observe the liberties
of the subject as declared by the ancient statutes.  He went on
the 28th of April to the House of Lords; and sending for the
Commons, the lord keeper, by order of the king, addressed them,
and referred to the expense of time that had been occasioned by the
debate in both houses-in which as they professed that they would
not diminish or blemish the king's prerogative, so he presumed
that " they would all confess it a point of extraordinary grace and




316              THE STUARTS. CHARLES I.
justice in him to suffer it to rest so long in dispute without interruption. But as the debate took more time than the affairs of
Christendom could permit, his majesty had thought of an expedient
to shorten the business, by commanding him to let them know that
he holds Magna Charta and the other statutes all in force, and that
he will govern according to them; and that you shall find as much
security in his royal word and promise as in the strength of any
law you can make."
The House of Commons, not moved by the king's expedient, appointed a committee of lawyers to draw a bill, containing the substance of Magna Charta and the other statutes concerning the
liberty of the subject.  Another message from the king was delivered by Mr. Secretary Cook, that, " to show clearly that it would
not be the king's fault if this be not a happy Parliament, he had
commanded him to desire the house clearly to let him know whether
they would rest on his royal word, which he did assure them should
be really and royally performed."  But on his own account as a
privy counsellor, the secretary told the house that he must commit,
on the king's order, and neither express the cause to the jailer nor
to the judges, nor to any counsellor in England, except the king
himself.  Yet (he said) " this power was not unlimited, and was
rather a charge and danger; for if by this power he should commit
the poorest porter upon what should appear not a just cause, he
should suffer a burden heavier than the law could inflict, for he
should lose his credit with his majesty and also his place."
Before the house had come to any conclusion on that message,
the secretary delivered, on the 2d of May, another message from
the king, " that time would not admit of more debate or delay, and
that the session of Parliament must continue no longer than Tuesday
come sevennight at the furthest; in which time his majesty, for
his part, would be ready to perform what he had promised; and if
the house were not as ready to do what was fit for themselves, it
should be their own faults." It was intimated that, upon assurance
of their good despatch and correspondence, it was his majesty's intention to have another session of Parliament at Michaelmas next,
for the perfecting of such things as could not then be done. The
Commons, by their speaker, answered the several messages, expressing




FIRST THREE PARLIAMENTS TO PETITION OF RIGHT.  317
full trust and confidence in the royal word and promise; yet, as
there had been public violation of the laws and the subjects' liberties,
by some of the king's ministers, they conceived that no less than a
public remedy would raise the dejected hearts of his subjects to a
cheerful supply of his majesty, or make them receive content in the
proceedings of the house.  The king answered by the lord keeper
that, to show the sincerity of his majesty's intention, he is content
that a bill be drawn for a confirmation of Magna Charta, and
the other six statutes insisted upon for the subjects' liberties, but so
as to be without additions, paraphrases, or explanations.
But notwithstanding the permission given for a bill, Mr.
Secretary Cook, on the next day, again pressed the house to rely
on the king's word as an assurance that bound the king further
than the law could. He urged that the debate should take place
in the house, and not in a committee of the whole house, but Sir
John Elliot replied, " that the proceeding in a committee is more
honorable and advantageous both to the king and the house; for that
way tends most to truth, as it is a more open way, where every man
may add his reasons, and make answer upon the hearing of other
men's reasons and arguments." The debate accordingly proceeded
in committee; " and the key was brought up, and none were to go
out without leave first asked. Sir Edward Coke persuaded the house
to proceed by bill.  "Was it ever known," said he, " that general
words were a sufficient satisfaction to particular grievances? The
king's answer is very gracious; but WHAT IS THE LAW OF THE REALM?
that is the question. I put no diffidence in his majesty; but the
king must speak by record, and in particular, and not in general.
Let us put up a PETITION OF RIGHT; not that I distrust the king,
but that I cannot take his trust but in a parliamentary way.
The Commons having finished the PETITION, desired a conference
with the Lords, which was held on the 8th of May, but their pro.
ceedings were suspended by a letter from the king, sealed with the
royal signet, and delivered by the Duke of Buckingham. Referring
to the leave he had given for debate on the highest points of royal
prerogative-which none of his predecessors would have permitted-he found it still insisted upon, notwithstanding his several messages, that neither he nor his privy council have power to commit




318              THE STUARTS. CHARLES I.
any man without cause shown; whereas it often happened that,
should the cause be shown, the service itself would thereby be destroyed and defeated.  He informed the Lords that without the
overthrow of his sovereignty, he could not suffer that power to be
impeached: but he declared that neither he nor his privy council
should or would commit or command to prison, or otherwise restrain the person of any man for not lending money to him, nor for
any other cause which in his conscience did not concern the
public good of himself and his people; that he would not be drawn
to pretend any cause, wherein his judgment and conscience were
not satisfied; and that in all cases, upon the humble petition of
the party, or address of the judges to him, he would readily and
really express the true cause of their commitment or restraint, so
soon as, with convenience and safety, the same was fit to be disclosed
and expressed. This he thought fit to signify, to shorten any long
debate upon this question.
The king's letter impressed the House of Lords with a desire
to render the petition acceptable to him. They prepared a saving
clause of the king's sovereign power-" to leave entire the sovereign
power of the king "-which in a conference the Commons rejected.
The king also interposed messages to the Lords, urging a speedy
decision; but at length, on the 26th of May, the Lords, after
several conferences with the Commons, agreed to the petition as
prepared by them, with a few verbal alterations. They contented
themselves with a declaration, by their own house alone, to the
king, that their intention was not to lessen or impeach anything
which by the oath of supremacy they had sworn to assist and defend. The petition was delivered on the 28th of May, by the
lord keeper, to the king, in the presence of both houses, and it was
requested that his majesty would please to give his assent to it
in full Parliament.
The substance of this great constitutional statute is as follows:
It is the petition of the lords spiritu l and temporal and commons, in
Parliament assembled, and is addressed to the king. It begins by1. Reciting the ancient laws against taxation without consent
of Parliament; —il; declares that, notwithstanding su~ch laws, commissions have issued, by which the people have been assembled and




FIRST THREE PARLIAMENTS TO PETITION OF RIGHT. 319
required to lend money to your majesty; and many upon their
refusal, have had an oath administered to them, not warrantable by the
laws and statutes, and have been constrained to become bound to make
appearance, and to give attendance before your privy council, and in
other places'; and others have been imprisoned, confined, and sundry
other ways molested and disquieted.  Divers other charges have been
laid and levied on the people, in several counties, by lord lieutenants,
deputy lieutenants, commissioners for musters, justices of peace,
and others, by command or direction from your majesty, or your
privy council, against the laws and customs of the realm.
2. Reciting the ancient laws for securing the liberty of the subject,
the petition declares that against the tenor of such laws, divers of your
subjects have of late been imprisoned without any cause showed; and
when for their deliverance they were brought before your justices, by
writs of HABEAS CORPUS, there to undergo and receive as THE COURT should
order-and their keepers commanded to certify the causes of their
detainer-no cause was certified, but that they were detained by YOUR
MAJESTY'S SPECIAL COMMAND, signified by the LORDS OF YOUR PRIVY
COUNCIL; and yet were returned back to several prisons, WITHOUT BEING
CHARGED WITH  ANYTHING TO WHICH THEY MIGHT MAKE ANSWER
ACCORDING TO TIIE LAW.
3. Great companies of soldiers and mariners (it declares) have
of late been dispersed into several counties; 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 the rea'm, and to the great grievance and vexation of
the people.
4. Reciting Magna Charta and the ancient statutes, that no
man should be tried, or be adjudged to death, but by the law of
the realm, it declares that of late, commissions under your majesty's great seal have issued forth, by which certain persons have
been assigned and appointed commissioners, with power and authority to proceed, within the land, according to the justice of MARTIAL
LAW, against such soldiers or mariners, or other dissolute persons
joining with them, as should commit murder, robbery, felony,
mutiny, or other outrage or misdemeanor whatever; and by such
summary cause and order as is agreeable to martial law, and is




320               THE STUARTS. CHARLES I.
used in armies in time of war, to proceed to the trials and condemnation of such offenders, and to cause them to be executed and put
to death, according to the martial law. By pretext whereof some of
your majesty's subjects have been put to death, when,. if they deserved
death, they ought BY THE STATUTES OF THE LAND, AND BY NO OTHER,
to have been adjudged and executed; and other grievous offenders
have escaped the punishment due to them by the laws of the realm,
by reason that your officers and ministers of justice have unjustly
refused or forborne to proceed against such offenders, according to
the laws of the realm, upon pretence that the offenders were
punishable only by martial law, and by authority of the commissions; which comzissions. AND ALL OTHERS OF A LIKE NATURE, are
directly contrary to the laws and statutes of your realm.
1. The petitioners prayed that no man hereafter be compelled
to make or yield any gift, loan, benevolence, tax, or such like
charge, without common consent by act of Parliament; and that
none be called to make answer, or take such oath, or to give attendance, or be confined or otherwise molested or disquieted concerning the same, or refusal thereof.
2. That no freeman, in any such manner as is before mentioned, be
imprisoned or detained.
3. That your majesty would be pleased to remove the soldiers
and mariners, and that your people may not be so burdened in
time to come.
4. That the commissions for proceeding by MARTIAL LAW may be
revoked and annulled.; and that hereafter no commissions of like nature
may issue forth to any person or persons whatsoever to be executed as
aforesaid, lest by color of them any of your majesty's subjects be
destroyed, or put to death, CONTRARY TO THE LAWS AND FRANCHISE OF
THE LAND.
All which they most humbly pray of your most excellent
majesty AS THEIR RIGHTS AND LIBERTIES ACCORDING TO THE
LAWS AND STATUTES OF THIS REALM: and that your majesty
would also vouchsafe to declare that the awards, doings, and proceedings to the prejudice of your people in any of the premises,
shall not be drawn hereafter into consequence or example; and
that your majesty would be also graciously pleased, for the far



FIRST THREE PARLIAMENTS TO PETITION OF RIGHT.  321
ther comfort and safety of your people, to declare your royal will
and pleasure-that in the things aforesaid, all your officers and nministers shall serve you according to the laws and statutes of this realm,
as they tender the honor of your majesty and the prosperity of
this kingdom.
The king attended in the House of Lords on the 2d of June,
to give his royal assent to the petition, in the presence of the Lords
and Commons.  It was read over by the clerk; but instead of
adopting the ancient form of the royal assent-" Soit droit fait
comme est desire " —the king made the following answer:
"'l'he king willeth that right be done according to the laws
and customs of the realm; and that the statutes be put in due execution, that his subjects may have no cause to complain of any
wrong or oppressions, contrary to their just rights and liberties;
to the preservation whereof he holds himself, in conscience, as well
obliged, as of his own prerogative."
On the return of the Commons to their house the king's answer
was read, and dissatisfaction was expressed at the departure from
the legal form.  But the consideration of it was postponed, for
another matter had arisen, more absorbing than even that of the
liberty of the subject.
The Church sympathized with the king in his struggle for prerogative, and the pulpit had been used to intimidate the people
by the terrors of Divine punishment from resisting the royal demands.   Among these clerical politicians, one Dr. Mainwaring
had become conspicuous for his enforcement of unconditional loyalty. He had preached two sermons before the king, and a third
in his parish church, and these he afterward published in a book
entitled' Religion and Allegiance.' He maintained that the king's
royal command imposing taxes and loans without consent of Parliament was so binding on the conscience of a subject of the kingdom that he could not refuse payment without peril of damnation!
And he moreover enforced it as a principle that the authority of
Parliament was not necessary for the raising of aids and subsidies.
Such a conversion of the Church into a political arena is always
fraught with danger to a commonwealth.  Nothing is so beneficial
to society as the faithful preaching of the gospel of Jesus Christ;
14*




322              THE STUARTS. CHARLES I.
and nothing is so great a curse as the perversion of the pulpit to
the purposes of politics; but in England, where the Church and
State are united, the use by the king of so potent an instrument as
the established Church for the dissemination of his principles of
absolutism was manifestly not to be endured.
The Commons, therefore, prepared charges against Mainwaring, which they presented to the House of Lords, and called upon
that house to make inquiry, and bring him to justice.  The king
tried to avert the Commons' proceedings by repeated messages to
Lords and Commons, promising a faithful adherence to the Petition
of Right, notwithstanding the irregularity of form in the assent,
but finally intimating his intention to close the session on the 11th
of the month; " and because that could not be, if the house entertain more business of length, he required of them not to enter
or proceed with any new business which might spend greater
time, or which might lay any scandal or aspersion on the state,
government, or ministers thereof."
This message produced a debate and a scene in the House of
Commons that should not be lost sight of in our constitutional history. A restriction upon their liberties so important as one prohibiting them from censuring the king's ministers, could not be
passed over in such a Parliament. A debate was opened, in which
Sir John Elliot was the second speaker. He commented on that
part of the message, " that they were not to enter on any business
which might lay some aspersions on the government." " It is said
also," he proceeded, " as if we cast some aspersions on his majesty's
ministers.  I am  confident no minister, howsoever dear, can "Here the speaker started up from the chair, and supposing that
Sir John Elliot intended to censure the Duke of Buckingham,
he said, "There is a command laid upon me to interrupt any
that should go about to lay an aspersion upon the ministers of
state."  A deep silence followed;-the speaker desired leave to
go forth for half an hour; and the house ordered that he might go
forth, if he pleased.
The house, in his absence, resolved itself into committee.  The
first member who spoke was in consternation; he said, " That for
the speaker to desire to leave the house in such a manner was never




FIRST THREE PARLIAMENTS TO PETITION OF RIGHT.  323
heard of before, and he feared would be ominous." The next said
there were two ways of proceeding: to go to the Lords, or to the
king. He thought, " the latter our proper cause, as it doth concern
our liberties; and let us not fear to make a remonstrance of our
rights." Sir Edward Coke, after quoting several ancient instances
of the interference of Parliament with kings' ministers, said, " I
think the Duke of Buckingham is the cause of all our miseries, and
till the king be informed thereof, we shall never go out with
honor, or sit with honor here. As for going to the Lords, that
is not via regian; our liberties are now impeached; we are deeply
concerned. It is not via regia, for the Lords are not participants
in our liberties. It is not the king, but the duke that saith,' We
require you not to meddle with state government, or the ministers
thereof.'" Several members attributed these evils to the prevalence
and permission allowed to popery, and " because those that use the
king's power seek an utter subversion of our religion." Another
said, " It is not the Duke of Buckingham alone that is the cause
of the evils, but there are other great persons worthy of blame; " to
which it was replied, "Take away the one, and the rest will
vanish." Many found excuse for the king, saying, " It is not King
Charles counselling himself, but ill counsel followed that is given
him  by ill counsellors."  The house was preparing to put the
question, " That the Duke of Buckingham shall be instanced to be
the chief and principal cause of all their evils," when the speaker
returned with a message from the king, to whom he went when he
left the chair-" That his majesty commands for the present,
they adjourn the house till to-morrow morning, and all committees
cease in the mean time,"-and the speaker adjourned the house
accordingly.
The king did not maintain the absolute position which had produced this scene. He sent, on the 6th of June, a message to the
Commons, that he had no meaning of barring them of their just
right, but only to avoid all scandals on his past counsel and actions; and that his ministers might not be, nor himself, under
their names, taxed for their counsel to him. The speaker confessed that, when he left the house with its permission, he went to
the king, who confirmed the latter message, stating that, It bars




324              THE STUARTS. CHARLES I.
you not of your right in matter; nay, not in manner.  The house
for the present accepted the explanation as satisfactory.
The Commons had now leisure to consider the king's evasive
answer to the Petition of Right. At a conference with the Lords,
held on the 7th of June, both houses agreed to address the king,
" that he would please to give a clear and satisfactory answer, in
full Parliament, to the petition." The message having been communicated to the king, he appointed that day, at four in the afternoon, when he came to the House of Lords; and the speaker, with
the Commons being in attendance, the king commanded the clerk
of Parliament to cut out his former answer entered in the journal,
and he, at the same time, gave him another. After a speech from
the lord keeper, requesting a more clear signification of the royal
assent, the king made a short speech defending his former assent
as sufficient, but concluding with, " Read your petition, and you
shall have an answer that I am sure will please you." The petition having been read, the clerk gave the king's assent-" Soit
droit fait comme il est d6sir6."  " Let right be done as is desired,"
and the petition then became, in form and substance, an Act of
Parliament.
It is recorded in the Lords' journals that, at the conclusion, of
the business, the Commons gave a great and joyful applause; and
other authorities mention that they returned to their house with
unspeakable joy, and resolved so to proceed as to express their
thankfulness.  The king added to the general satisfaction, by sending a message to the Commons —in anticipation of a request they
were about to make —consenting that the petition and his answer
should be recorded in the Courts of Westminster, as well as the
Houses of Parliament. It is now time to give this great document
in full.




Fij1c petition of taigllt.
THE Petition exhibited to his Majesty by the Lords Spiritual and
Temporal, and Commons, in the present Parliament assembled, concerning divers Rights and Liberties of the Subjects, with the King's
Majesty's Royal Answer thereunto in full Parliament.
To the King's Most Excellent Majesty.
Humbly show unto our Sovereign Lord the King, the Lords
Spiritual and Temporal, and Commons, in Parliament assembled,
That whereas it is declared and enacted by a Statute made in the
Time of the Reign of King Edward the First, commonly called
Statutum de Tallagio non concedendo, That no Tallage or Aid shall
be laid or levied by the King or his.Heirs in this Realm, without
the good Will and Assent of the Archbishops, Bishops, Earls,
Barons, Knights, Burgesses, and other the Freemen of the
Commonalty of this Realm; and by Authority of Parliament
holden in the five and twentieth Year of the Reign of King Edward
the Third, it is declared and enacted, That from thenceforth no
Person should be compelled to make any Loans to the King against
his Will, because such Loans were against Reason and the Franchise
of the Land; and by other Laws of this Realm  it is provided,
That none should be charged. by any Charge or Imposition called a
Benevolence, nor by such like Charge: by which, the Statutes
before mentioned, and other the good Laws and Statutes of this
Realm, your Subjects have inherited this Freedom, That they should
not be compelled to contribute to any Tax, Tallage, Aid or other
like Charge not set by common Consent in Parliament:




326                 PETITION OF RIGHT.
II. Yet, nevertheless, of late divers Commissions directed to
sundry Commissioners in several Counties, with Instructions, have
issued; by means whereof your People have been in divers places
assembled. and required to lend certain Sums of Money unto your
Majesty, and many of them, upon their Refusal so to do, have had
an Oath administered unto them not warrantable by the Laws or
Statutes of this Realm, and have been constrained to become bound
to make Appearance and give Attendance before your Privy Council and in other Places, and others of them have been therefore imprisoned, confined, and sundry other Ways molested and disquieted;
and divers other Charges have been laid and levied upon your
People in several Counties by Lord Lieutenants, Deputy Lieutenants, Commissioners for Musters, Justices of Peace, and others,
by Command or Direction from your Majesty, or your Privy Council, against the Laws and Free Customs of the Realm.
III. And whereas also by the Statute called The Great Charter
of the Liberties of England, it is declared and enacted, That no
Freeman may be taken or imprisoned, or be disseized of his Freehold or Liberties, or his Free Customs, or be outlawed or exiled, or
in any Manner destroyed, but by the lawful judgment of his Peers,
or by the Law of the Land.
IV. And in the eight and twentieth Year of the Reign of King
Edward the Third, it was declared and enacted by Authority of
Parliament, That no Man of what Estate or Condition that he be,
should be put out of his Land or Tenements, nor taken nor imprisoned, nor disherited, nor put to Death, without being brought
to answer by due Process of Law:
V. Nevertheless against the Tenor of the said Statutes, and
other the good Laws and Statutes of your Realm to that End provided, divers of your Subjects have of late been imprisoned without any Cause showed; and when for their Deliverance they
were brought before your Justices by your Majesty's Writs of
Habeas Corpums, there to undergo and receive as the Court should
order, and their Keepers commanded to certify the Causes of their
Detainer, no Cause was certified but that they were detained by
your Majesty's special Command, signified by the Lords of your
Privy Council, and yet were returned back to several Prisons, with



PETITION OF RIGHT.                  32'7
out being charged with any Thing to which they might make answer
according to the Law.
VI. And whereas 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:
VII. And whereas also by Authority of Parliament, in the five
and twentieth Year of the Reign of King Edward the Third, it is
declared and enacted That no Man should be forejudged of Life or
Limb against the Form of. the Great Charter and the Law of the
Land; and by the said Great Charter and other. the Laws and
Statutes of this your Realm, no' Man ought to be adjudged to Death
but by the Laws established in this your Realm, either by the Customs of the same Realm, or by Acts of Parliament: And
whereas no Offender of what kind soever is exempted from the
Proceedings to be used, and Punishments to be inflicted by the
Laws and Statutes of this your Realm: Nevertheless of late Time
divers Commissions under your Majesty's Great Seal have issued
forth, by which certain persons have been assigned and appointed
Commissioners, with Power and Authority to proceed within the
Land, according to the Justice of Martial Law, against such Soldiers
or Mariners, or other dissolute Persons joining with them, as should
commit any Murder, Robbery, Felony, Mutiny or other Outrage or
Misdemeanor whatsoever, and by such summary Course and Order
as is agreeable to Martial Law, and as is used in Armies in Time
of War, to proceed to the Trial and Condemnation of such Offenders,
and them to cause to be executed and put to Death according to
the Law Martial:
VIII. By Pretext whereof some of your Majesty's Subjects
have been by some of the said Commissioners put to Death, when
and where, if by the Laws and Statutes of the Land they had deserved Death; by the same Laws and Statutes also they might and
by no other ought to have been judged and executed:
IX. And also sundry grievous Offenders, by color thereof claiming an Exemption, have escaped the Punishments due to them by
the Laws and Statutes of this your Realm, by reason that divers




328                 PETITION OF RIGHT.
of your Officers and Ministers of Justice have unjustly refused or
forborn to proceed against such Offenders according to the same
Laws and Statutes, upon Pretence that the said Offenders were
punishable only by Martial Law, and by Authority of such Commissions as aforesaid; which Commission, and all other of like
Nature are wholly and directly contrary. to the said Laws and
Statutes of this your Realm:
X. They do therefore humbly pray your Most Excellent
Majesty, That no Man hereafter be compelled to make or yield any
Gift, Loan, Benevolence, Tax or such-like Charge, without common
Consent by Act of Parliament; And that none be called to make
Answer, or take such Oath, or to give Attendance, or be confined,
or otherwise molested or disquieted concerning the same, or for Refusal thereof; And that no Freeman, in any such Manner as is
before mentioned, be imprisoned or detained; And that your
Majesty would be pleased to remove the said Soldiers and Mariners,
and that your People may not be bnrthened in Time to come;
And that the aforesaid Commissions, for proceeding by Martial
Law, may be revoked and annulled; And that hereafter no Commissions of like Nature may issue forth to any Person or Persons
whatsoever to be executed as aforesaid, lest by Colour of them any
of your Majesty's Subjects be destroyed, or put to Death contrary
to the Laws and Franchise of the Land.
XI. All of which they most humbly pray of your Most Excellent Majesty as their Rights and Liberties, according to the Laws
and Statutes of this Realm; and that your Majesty would also
vouchsafe to declare That the Awards, Doings and Proceedings, to
the Prejudice of your People in any of the Premises shall not be
drawn hereafter into Consequence or Example; And that your
Majesty would be also graciously pleased, for the further Comfort
and Safety of your People, to declare your Royal Will and Pleasure,
That in the Things aforesaid all your Officers and Ministers shall
serve you according to the Laws and Statutes of this Realm, as they
tender the Honor of your Majesty, and the Prosperity of this
Kingdom.
Qua quidem petitions lecta et plenius intellecta, per dictum Dominum
Regem taliter est responsum in pleno parliamento, via., Soit Droit fait
comme est desire.




CHAPTER IX.
CHARLES I.-FROM THE PETITION OF RIGHTT TO THE GRAND
REMONSTRANCE.
FIVE SUBSIDIES GRANTED TO THE KING-PUNISHMENT OF DR. MAINWARING-ILLEGAL
COMMISSION OF EXCISE CANCELLED-REMONSTRANCE OF -THE COMMONS CONCERNING  TONNAGE AND POUNDAGE-PARLIAMENT PROROGUED-CHARLES S
SPEECH-REASSEMBLING OF PARLIAMENT-CONSIDERATION OF GRIEVANCES
AND OUTRAGES-THE KING CONSENTS TO TONNAGE AND POUNDAGE AS A
PARLIAMENTARY GRANT-FURTHER IRRITATIONS BY THE STAR CHAMBERCHARLES COMMANDS AN ADJOURNMENT-RESISTANCE OF THE COMMONSTHEIR PROTESTATION-CHARLES'S PROCLAMATION-IMPRISONMENTS-DISSOLUTIGN-REMARKS OF CLARENDON-DARING PROCLAMATION BY THE KINGPROSECUTIONS OF THE IMPRISONED MEMBERS-DISREGARD OF HABEAS CORPUS
BY THE JUDGES-ROYAL EXACTIONS FROM THE PEOPLE-FEUDAL OPPRESSIONS AND FOREST LAWS RESTORED-SHIP MONEY-JOHN HAMPDEN-CHARLES'S
DOCTRINE OF MILITARY NECESSITY SUSTAINED BY THE JUDGES IN AN
t" EXTRA-JUDICIAL OPINION "- THE SHORT PARLIAMENT-GRIEVANCES CONSIDERED —SUPPLIES DEMANDED BY THE KING-ANSWER OF THE COMMONS —DISSOLUTION-THE LONG PARLIAMENT —ITS TEMPER FROM THE FIRST-UNANIMITY
OF LORDS AND COMMONS-LATE PROCEEDINGS OF THE KING, AND THE EXTRA'
JUDICIAL OPINION OF THE JUDGES IN REGARD TO SHIP MONEY DECLARED ILLEGAL-MONOPOLISTS AND PATENTEES EXCLUDED FROM PARLIAMENT-HUMILIATION OF THE KING-TENURE OF JUDGES' APPOINTMENTS TO BE HENCEFORTH FOR
LIFE-ACT FOR TRIENNIAL PARLIAMENTS —ACT TO PREVENT SUDDEN ADJOURNMENTS AND DISSOLUTIONS-CHARLES GIVES UP HIS CLAIM TO TONNAGE AND
POUNDAGE-ABOLITION OF THE COURT OF STAR CHAMBER AND HIGH COMMISSION
COURT-SHIP MONEY, FOREST CLAIMS, AND FEUDAL EXACTIONS ABANDONEDOBSERVATIONS-SATISFACTION OF REASONABLE MEN AMONG THE COMMONS-WELCOME OF THE KING IN LONDON ON HIS RETURN FROM SCOTLAND-PURITANISM.
THE Commons gave proof of the conciliatory effect of the proceedings we have just related by passing a bill granting five subsidies to the king. Sir Edward Coke carried it to the Lords,




330                      CHARLES I.
accompanied by almost the whole house. The Lords took exception to the form of the bill, that the Commons alone were named
in the preamble. Several conferences took place, but the Commons
evaded any alteration; and from this time settled the custom of
making money bills, in form as well as procedure, a grant from the
Commons alone.
The king had announced his intention to prorogue the Parliament on an early day, and several important affairs were brought
under consideration in the interval, which require our notice.
The impeachment of Dr. Mainwaring was brought to a conclusion by the Lords, who passed sentence upon him-that he should
be imprisoned during the pleasure of the house, be fined ~1,000 to
the king, should make submission at the bar of both houses, be
suspended three years from the ministry, and be disabled from ever
preaching at court, or holding any ecclesiastical dignity or secular
office, and that all the offending books should be called in by proclamation, and burnt.  He acknowledged his fault, and made submission on his knees at the bar of the Commons, being led into the
house by the warden of the Fleet Prison, to which he was
committed.
The Commons now complained of a commission of excise which
the king had issued, appointing thirty-three of his counsellors to
advise him how to raise money for the war —': the same to be done
by impositions or otherwise, as in your wisdoms and best judgments
ye shall find to be most convenient in a case of this inevitable
necessity, wherein form and circumstance must be dispensed with,
rather than the substance be lost or hazarded." After a conference
with the Commons, the Lords appointed a special committee to
draw up a message to advise the king to cancel the commission.
The Commons sent to the lord keeper for the commission, which
was sent and read to the house. This business terminated in the
lord president of the council acquainting the Lords that the king
had caused the commission to be cancelled in his presence.  His
lordship showed the cancelled commission to the house, and it was
sent with a message to the Commons for their inspection.
Tonnage and poundage had not yet been granted to the king,
although he appears to have expected that an act, granting the




PETITION OF RIGHT TO THE GRAND REMONSTRANCE. 331
duties for his life, would follow his assent to the PETITION OF RIGHT.
The Commons, however, proceeded to prepare a " remonstrance," to
explain why the duties had not been granted to him before, and
why it was necessary still to postpone the grant.  They desired a
previous admission from the king that the duties were not leviable
by virtue of his prerogative, but of the voluntary grant of Parliament; and they attributed the delay which had occurred to the
illegal conduct of King James in raising the duties above the legal
rates, and to Charles's collection of the same illegal rates. They
declared that the collection of the duties by Charles, without the
authority of Parliament, was a fundamental breach of the liberties
of the kingdom, and contrary to his answer to the Petition of
Right; and they besought him to forbe r further receiving them,
and not to take it in ill part from those of his subjects who should
refuse to make payment without warrant of law.
The king, being informed of these proceedings, and alarmed for
his tonnage and poundage, hurried to the House of Lords on the
day fixed for the prorogation, several hours earlier than he was expected, and prevented the presentation of the remonstrance by
proroguing the Parliament. In his speech he said: " It may seem
strange that I come so suddenly to end this session, therefore I
will tell you the cause, though I owe the account of my actions to
God alone. A while ago the House of Commons gave me a remonstrance-how  acceptable every man may judge. Now, I am
well informed that a second remonstrance is preparing for me, to
take away the profit of my tonnage and poundage, by alleging that
I have given away my right thereto by my answer to your petition.
This is so prejudicial to me that I am forced to end this session
some few hours before I meant, being not willing to receive any
more remonstrances, to which I must give a harsh answer. To
prevent false constructions of what I have granted in your petition,
I declare that I have granted no new, but only confirmed the
ancient liberties of my subjects.... But as for tonnage and
poundage, it is a thing I cannot want, and was never intended by
you to ask, nor meant by me, I am sure, to grant."
The speech was ordered by the king to be entered on the Commons' journals. The Bill of Subsidy was presented by the speaker,




332                     CHARLES I.
with the remark " that it was the greatest gift that ever was given
in so short a time." The royal assent was given to that and some
other bills, and the Parliament was prorogued on the 20th of
October.
Before Parliament again assembled one great cause of discord
was removed. The Duke of Buckingham was assassinated at Portsmouth by one Felton, an officer, who, previously to the assassination, sewed a paper within his hat, avowing that it was the Parliamentary remonstrance against the duke that had induced him to
take him off as an enemy to the country.  Buckingham was at the
time engaged at Portsmouth in preparing a new expedition for the
relief of the Protestants of Rochelle. In consequence of his death
the expedition was committed to the conduct of the Earl of Lindsay. But it ended as unfortunately as the former expedition conducted by Buckingham. It was forced to surrender to the Catholic troops of Louis XIII., who entered the town on the 18th of
October, and compelled the Protestants to submission.
Parliament was again prorogued from the 20th of October to
the 20th of January, on which day it assembled, and the Commons
immediately reconstituted committees for privileges, religion, courts
of justice, grievances, and trade.  A case of extraordinary meanness on the part of the crown was communicated to the House of
Commons by Sir John Elliot-that the Petition of Right had been
printed by the Government for circulation amongst the people with
the first and repudiated answer appended to it, instead of the substituted legal answer. Mr. Selden reminded the house how the
Petition of Right had been violated since their last meeting-that
the goods of Mr. Rolles, a member of the house, had been seized
by the crown for the duties of tonnage. and that the Court of
Exchequer had made an order commanding the sheriff not to
execute a writ of replevin, issued with the view of trying the
legality of the seizure, and restoring the goods in the mean time.
He also referred with indignation to the case of Mr. Prynne, who
had been deprived of his ears by sentence of the Star Chamber.
The house entered upon the complaint of Mr. Rolles, of the
seizure of his goods for tonnage. Before the debate had proceeded
far, a message was received from the king that he would speak with




PETITION OF RIGHT TO THE GRAND REMONSTRANCE. 333
both houses on the following day (the 23d of January), in the banqueting house at Whitehall; and on their proceeding thither at the
time appointed he made a speech explanatory of his former course
in reference to the matter, which made it evident that he was now
prepared to relinquish his claim of hereditary right to tonnage and
poundage, if he could obtain a parliamentary grant; and this
speech was followed by a bill, which Mr. Secretary Cook brought
in for a grant of tonnage and poundage, and which he endeavored
to induce the house to take into consideration.  They gave priority
to other business. The king pressed for priority of tonnage and
poundage, in successive messages, and would have put the Commons
completely in the wrong by fair speeches and propositions, if he
had at the same time abstained from  enforcing the ungranted
duties. But whilst addressing the Commons, his officers were at the
same time proceeding against some of the members. The house
was irritated by an announcement from Mr. Rolles that " since the
last complaint of the breach of the liberties of the house, his house
was locked up by one Massey, a pursuivant, and that yesterday he
was called forth from the committee in the Exchequer Chamber,
and served with a subpoena to appear in the Star Chamber." Although Mr. Rolles announced at the same time that he had since
received a letter from Mr. Attorney that it was a mistake, the
house would not receive the explanation, but ordered that the messenger who served the subpoena should be summoned to attend the
house, and it appointed a committee to see and examine the information in the Star Chamber, and to ascertain by whom the same
was put in. The house took very decided measures in opposition to
the king's proceedings to recover tonnage and poundage from the
merchants; but their success proving at best but doubtful, they adjourned. They met again on the 25th of February, when another
scene of interest and excitement was presented. The house proceeded to consider the articles to be insisted and agreed upon at a
sub-committee for religion. The debate was interrupted by a message from the king, which the speaker announced, commanding
him to adjourn the house " until Tuesday come seven night following." It was objected that it was not the office of the speaker to
deliver any such command; for the adjournment of the house did




334                      CHARLES I.
properly belong unto themselves; and, after they had settled some
things they thought convenient to be spoken of, they would satisfy
the king.  Sir John Elliot offered a remonstrance which he had
prepared, addressed to the king, beseeching him to forbear any
further recovery of tonnage and poundage; but the speaker and the
clerk refused to read it to the house; and on the former being asked
to put the question to the house, whether the remonstrance should
be adopted, the speaker said " he was commanded otherwise by the
king."  "' If you will not put the question," said Mr. Selden,
" which we command you, we must sit still; and so we shall never
be able to do anything.  We sit here by command from the king
under the great seal; and as for you, you are, by his majesty, sitting in his royal chair before both houses, appointed our speaker.
And do you refuse to be a speaker? " The speaker justified his
refusal by a command from the king to rise as soon as he had delivered his message.  He rose and left the chair, but was drawn into
it again by Holles, Valentine, and others. He was held in the
chair amidst the scorn and derision of the members, who, foreseeing
that a dissolution would follow this outbreak, passed a protestation
hastily prepared by Mr. Rolles, containing the following words:
" Whoever shall counsel or advise the taking and levying of the
subsidies of tonnage and poundage, not being granted by Parliament,
or shall be an actor or instrument therein, shall be likewise reported
an innovator on the government, and a capital enemy to this kingdom and commonwealth.
" If any merchant, or other person whatsoever, shall voluntarily
yield or pay the said subsidies of tonnage and poundage, not being
granted by Parliament, he shall likewise be reputed a betrayer of
the liberty of England, and an enemy to the same."
When the protestation had been read and agreed to, the house
rose, having protracted their sitting about two hours. In the mean
time the king, hearing that their sitting was continued in disregard
of his command for adjournment, endeavored to remove them. He
first sent a messenger for the sergeant with his mace, that by
removing it from the table an end might be put to the sitting.
But the sergeant was detained, and the key of the door taken from
him and given to a member to keep. The king next sent the usher




PETITION OF RIGHT TO THE GRAND REMONSTRANCE. 335
of the black rod, as for a dissolution; but being informed that
neither the usher nor his message would be received, he became
enraged, and sent the captain of the pensioners, with his guard,
with orders to force open the door. But before that extreme step
could be taken, the house had risen and adjourned to the 10th of
March.
The king was now roused to violent action: he published a
proclamation signifying his intention to dissolve the Parliament on
account of the disobedient and seditious carriage of ill-affected
persons of the House of Commons; and he entered upon a course
of relentless persecution of the unfortunate patriots.  Without
waiting for the actual dissolution, Sir John Elliot, Selden, Holles,
Stodart, Hayman, Coriton, Long, Valentine, and Stroud were summoned before the privy council; and, after having been questioned
as to the parts they had respectively taken in preventing the speaker
adjourning the house according to the king's command, they were
committed to prison. The king's speech, when dissolving the Parliament, manifested his anger and intemperance.  He addressed
the lords only, although many of the commons were at the bar.
" He never came there," he said, "on so unpleasing an occasion, it
being for the dissolution of the Parliament. Many may wonder
why I did not rather choose to do this by commission, it being a
general maxim of kings to lay harsh commands by their ministers,
themselves only executing pleasing things. But I thought it necessary to come here this day to declare to you, my lords, and all
the world, that it was only the disobedient carriage of the lower
house that hath caused this dissolution at this time; and that you,
my lords, are far from the causers of it. Nor do I lay the fault
equally upon all the lower house; for as I know there are many
dutiful and loyal subjects there, so I know that it was only some
vipers amongst them that had cast this mist of difference before
their eyes."
This was the third Parliament that the king had dissolved in
anger within only four years. We may not hesitate to consider
these dissolutions impolitic and abrupt, if Clarendon, the historian
and apologist of Charles, has so vieived them. "The abrupt and
unkind breaking off," says Lord Clarendon, " the two first Parlia



336                       CHARBES I.
ments was wholly imputed to the Duke of Buckingham, and of the
third, principally, to the Lord Weston, then lord high treasurer of
fEngland.  No man," he observes, "can show me a source from
whence those waters of bitterness, afterwards tasted, more probably
flowed than from these unreasonable, unskilful, and precipitate dissolutions, in which, by an unjust survey of the passion, insolence,
and ambition of particular persons, the court measured the temper
and affection of the country; and by the same standard the people
considered the honor, justice, and piety of the court; and so usually parted, at those sad seasons, with no other respect and charity
one towards the other than accompanies persons who never meant
to meet but in their own defence, in which the king had always the
disadvantage to harbor persons about him who, with their utmost
industry, false information, and malice, improved the faults and
infirmities of the court to the people; and again, as much as in
them lay, rendered the people suspected if not odious to the king."
Charles followed up the dissolution of his third Parliament by
publishing a declaration of the causes which moved him to dissolve
it, and shortly afterwards by proclamation of unparalleled daring,
in which he asserted absolute power over the Parliament and people.
Referring to rumors spread by ill-disposed persons, he thought it
expedient to make known his royal pleasure, that he did not purpose
to overcharge his subjects by any new burden, but to satisfy himself
with the duties. received by his father, which he neither could nor
would dispense with.  And as to false rumors that he was about
again to call a Parliament, he said that although he had showed, by
his frequent meeting with his people, his love to th, use of Parliament, yet the late abuse having, for the present, driven him out of
that course, he should account it presumption for any to prescribe
any time to him for Parliaments: the calling, continuing, and dissolving them being always in the king's own power. He should be
more inclinable to meet a Parliament again when his people should
see more clearly into his intents and actions; when such as had
bred this interruption should receive their condign punishment; and
those that were misled by them and such ill reports, should come
to a better understanding of him and themselves.
Such a proclamation could only have been issued by a king




PETITION OF RIGHT TO THE GRAND REMONSTRANCE. 337
conscious of power and resolved to use it; and could only have
been received with silent acquiescence by a people who acknowledged that power, and their inability to resist it. The imprisoned
patriots who had led the House of Commons could no longer
stimulate the people nor resist the royal aggressions, whilst their
imprisonment operated as a terror to those who were inclined to
follow a patriotic cause.  The subservience of the judges prevented
any hope of stemming the kinlg's will in the courts of law; and the
Parliament, the only arena for free discussion, was now denounced
as a guilty institution, not to be called together again until it had
learnt the lesson of submission.
The proceedings against the members were continued with
great oppression. The judges were questioned by the attorneygeneral, for the purpose of obtaining their private opinions as to
the penal liability of the members in the courts of law, for their
conduct in the House of Commons.  Informations were instituted against some of them  in the:tar Chamber. and against
Sir John Elliot, Denzil Holles, and Benjamin Valentine, in the
king's bench.  Writs of habeas corpus having been issued to
bring up the latter from the prison of the king's bench, they
were, by the king's order, and to elude the judgment of the court,
transferred to the Tower. They remained there through the long
vacation, until November; and being then brought up to the king's
bench, the judges having previously conferred with the 1kii:, pronounced judgment that they ought to be bailed upon giving security for their good behavior. A decision so contrary to the spirit
and purpose of the writ of habeas corpus, and which implied a con fession of culpability without trial, could not be submitted to; and
the prisoners demanded to be bailed in point of right, and if not
of right, they did not demand it.  They were remanded to the
Tower, and were required to plead to the information. They demurred to the jurisdiction of the court, as being incompetent to
try supposed offences done in Parliament, but the demurrer was
overruled, and the prisoners persisting in their refusal to plead,
sentence was pronounce against them. They were ordered to be
imprisoned during the king's pleasure; and not to be delivered
until each gave security for his good behavior, and made subnlis15




338                      CHARLES I.
sion and acknowledgment of his offence. Sir John Elliot, inasmuch as the court thought him the ringleader, was fined ~2,000,
Mr. Holles, 1,000 marks; and Mr. Valentine, ~500.  These
patriotic men preferred imprisonment to the dishonor of acknowledging their conduct in Parliament to be an offence against the
law; and Sir John Elliot died in prison.
It now appeared hopeless to contend against the power of the
king; and some, whose ardent patriotism seemed to promise no
reward, were gained over to the king's party and accepted office
under him.  The king further strengthened his position by making
peace first with France and afterwards with Spain; and Lord
Clarendon informs us that " there quickly followed so excellent a
composure throughout the whole kingdom, that the like peace and
plenty and universal tranquillity, for ten years, was never enjoyed
by any nation." But all the principles of the constitution-the
laws relating to taxation, and even the king's own proclamation that
he would impose no new burdens-were disregarded.  Tonnage
and poundage were collected by order of the king's council.  New
and greater impositions were laid on trade. Obsolete laws were
revived and vigorously executed. The ancient prerogative enjoyed
by the crown of compelling its tenants in capite to take upon them
the order of knighthood was revived; and, notwithstanding a
restraining statute of Edward II., proclamations were made in
every county, summoning all men of full age seized of lands or rents
of the annual value of ~40 or more, not being knights, to appear
personally in the king's presence before a certain day to receive the
order and dignity of knighthood. If they made default they were
subjected to grievous fines and vexations. Thus, says Lord Clarendon, " the king received a vast sum of money from persons of
quality, or of any reasonable condition, throughout the kingdom,
by this expedient; which, though it had a foundation in right, in
the circumstances of proceeding was very grievous."
Furthermore the oppressions of the ancient forest laws were
restored. The ancient boundaries, which had been settled in the
reign of Edward III., were by virtue of packed juries extended so as
to include adjacent lands, and thus the attempt was made to set up
new forests in many parts of the kingdom; and the right thus




PETITION OF RIGHT TO THE GRAND REMONSTRANCE. 339
pretended to belong to the crown was only yielded to the rightful
owners in consideration of heavy fines, or great annual rents. This
burden,"' says Lord Clarendon, " lighted most upon persons of quality
and honor, who thought themselves above ordinary impressions,
and were therefore likely to remember it with more sharpness."
But the most memorable of these unconstitutional and oppressive exactions was that of SHIP MONEY. This was the invention of
Noy, who had seceded from the popular party, and become the king's
attorney-general. His investigation into old records led to the
discovery that in ancient times, when danger of war arose, the seaports and maritime counties had been called upon to furnish ships
for the protection of the kingdom; and upon that basis he planned
an expedient for raising a large and permanent revenue for the king.
The first attempt was made in August, 1634, on the citizens of
London; but we shall pass to the time (May, 1635) when the
scheme, after the death of Noy, was extended by Lord Keeper Finch
to the inland as well as the maritime counties of England and
Wales-and especially to that instance which has rendered the
name of JOHIN HAMPDEN immortal in the annals of the country.
By the plan put in force, writs were issued under the great seal
to the sheriffs of all the English and Welsh counties, directing that
each county should provide ships of various burden; but which, in
the instance of the county of Bucks, in which Hampden resided,
was a ship of war of 450 tons, with 180 men, guns, gunpowder,
double tackling, victuals, and all other things necessary. It was
ordered that she should be brought to Portsmouth on a day named;
and from that time, that the county should furnish also victuals
and mariner's wages and all other necessaries for twenty-six weeks.
But as it was never intended that an actual ship should be provided, the sheriff was further commanded, with the aid of the mayors
and bailiffs of the several cities and boroughs within his county, to
assess the requisite money on the several boroughs and freeholders
of the county; and to return the assessment, with the names of the
persons charged, in a schedule to the writ. If payment were not
voluntarily made by the party assessed, compulsory process was to
be issued to enforce it.
The levy, however obnoxious, had been continued annually for




340                      CHARLES I.
four years, producing a revenue of ~200,000 a year, when public
opinion set strongly against its legality. An attempt was made to
fortify it by the opinions of the judges.  They were summoned to
the Star Chamber in March, 1636, where a case and question were
put into their hands, signed by the king and enclosed in a regal
letter. The judges gave their unanimnous opinion in affirmation of
the question put to them-that, " when the good and safety of the
kingdom in general is concerned and the whole kingdom in danger,
your majesty may by writ under the great seal of England, command all your subjects, at their charge, to provide and furnish such
number of ships,-with men, munition, and victuals, and for such time
as you shall think fit, for the defence and safeguard of the kingdom
from such danger and peril; and that by law you may compel the
doing thereof in case of refusal or refractoriness. And we are also
of opinion that your majesty is the sole judge both of the danger,
and when and how the same is to be prevented and avoided." This
opinion became celebrated as an " extra-judicial opinion;" and Lord
Keeper Finch signified the king's command that it should be entered
in all the courts of Westminster, and that the judges should publish
it through all their circuits; and he inflicted the keenest rebuke of
the baseness and subserviency of the judges, by congratulating them
that the king had descended to communicate with them.
The king and his ministers, having secured the judges, could
proceed with confidence to put down opposition. Writs of scire
facias were issued against the defaulters in the county of Bucks,
requiring them to pay the money or to appear in court and show
cause against the demand; and the sheriff returned "that he had
made it known (quod scirifecit) to John Uampden Esq., who was
assessed at 20 shillings, and he hath not paid it."
Hampden justified his refusal of payment, and raised the question of the right of the crown, by a demurrer to the writ of scire
facias, which put at issue the law the writ was issued to enforce.
The case was argued before the twelve judges in the court of Exchequer Chamber, in April, 1638. The argument occupied twelve days.
All the old laws and authorities were cited, which showed that the
subject could not be taxed without the consent of Parliament, and
finally the confirmation of those laws by the Petition of Right




PETITION OF RIGHT TO THE GRAND REMONSTRANCE.  341
But a majority of the judges, four dissenting, pronounced judgment in favor of the  crown-that the writs were sufficient
in law to charge Mr. Hampden with the twenty shillings assessed
upon him.
Upwards of eleven years now passed before a Parliament was
assembled; a period during which, if we may believe Lord Clarendon,
England enjoyed the highest material prosperity; but during which
it is also certain that the liberties of the people were defied, and
the prerogative of the crown strained to the utmost.
FOURTH (THE SHORT) PARLIAMENT.
At length the king's necessities compelled him to summon a
Parliament, when, immediately on their assembling, petitions, representing grievances, were presented from several English counties;
and they led to a debate in which the unconstitutional proceedings
of the Government, during the long discontinuance of Parliament,
were reviewed.  This was followed by an inquiry into the circumstances connected with the dissolution of the last Parliament.  A
resolution was passed that the refusal of the speaker to put the
question, by a verbal command from his majesty, was a breach of
privilege; and warrants were issued, signed by the speaker, requiring that the records and proceedings of the court of Exchequer, concerning ship money, should be produced by the officers of that court.
These steps indicating the course the Commons were taking,
Charles made another effort to call their attention to his supplies
Sir Henry Vane delivered a message from the king to the house,
that it was his pleasure they should attend him, on the 21st of
April, at Whitehall; where the Lords and Commons being assembled
in the king's presence, Lord Keeper Finch addressed them.
" Such are his majesty's occasions," he said, "that if the supply
be not speedy, it will be of no use; for the army is now marching,
and stands at least ~100,000 a month. The king doth not expect
a great and ample supply for perfecting the work, but only such as
without which the charge would be lost and the design frustrated.
That done, you may present your grievances to him, and he will
hear them with a gracious ear. Concerning ship money, his majesty




342                      CHARLES I.
never had it in his royal heart to make an annual revenue of it, nor
to make the least benefit or profit of it, but what he did or intended
was for the honor and glory of the nation; and the accounts of such
moneys so received have been brought to the council table, and the
moneys delivered to the treasurer of the navy. His majesty cannot
this year forbear the writs for ship money, because they had gone out
before it was possible that Parliament could grant supply; but he expects your concurrence in the levying it for the future. It will comfort every English heart to know that his majesty hath no thoughts of
enriching himself by these writs: he doth desire but to live as it
behooves a king of England, and as every true English heart desireth. "
These fair pronfises and gracious explanations did not avert
the Commons from their course. They admitted the great urgency of the occasion: " Necessity is come upon us like an armed
man. Let us not stand too nicely upon circumstances; let us do
what may be done with reason and honesty on our part to comply
with the king's desires. But let us first give new force to the old
laws for maintaining our rights and privileges, and endeavor to
restore this nation to its fundamental and vital liberties-the
property of our goods, and the freedom of our persons. The kings
of this nation have always governed by Parliaments; but now divines
would persuade us that a monarch must be absolute, and that he
may do all things ad libitum. Since they are so ready to let loose
the conscience of the king, to enterprise the change of a long-established government, we are the more carefully to provide for our
protection against this pulpit law, by declaring and reenforcing the
municipal laws of the kingdom. The first thing this house should
consider of, should be the restoring to the nation their fundamental
and vital liberties, and then to consider of the supply desired."
A Parliament thus begun under Charles I. could not be expected
to be very long continued, and it was dissolved by the king's command after an existence of but three weeks. Those who composed
it were by no means men of distempered minds, or desirous of
revolution. They were fully disposed to supply the king's necessities, but they were no less determined to maintain their own rights
and their country's liberty.
Yet the sudden dissolution created great surprise.  " There




PETITION OF RIGHT TO THE GRAND REMONSTRANCE.  343
could not," says Lord Clarendon, "a greater damp have seized upon
the spirits of the nation than this dissolution caused, and men had
much of the misery in view which shortly after fell out. It could
never be hoped that more sober and dispassionate men would ever
meet together in that place, or fewer who brought ill purposes with
them; nor could any man imagine what offence they had given,
which put the king upon that resolution."
FIFTH (THE LONG) PARLIAMENT.
Lord Clarendon informs us that, within an hour after the dissolving of the last Parliament, meeting Mr. St. John, who was seldom known to smile, with a most cheerful aspect, while he himself
appeared melancholic, as in truth he was, Mr. St. John asked
him what troubled him. He answered that "in such a time of
confusion, so wise a Parliament, which alone could have found remedy for it, was so unreasonably dismissed." The other answered
that " all was well, and that it must be worse before it could be
better;" a prophecy founded on a sound view of the incompetency
of the king to contend with his adversaries, and of the increasing
difficulty of his affairs. Certainly the king made nothing by the
change of the Short Parliament for that which his necessities and
the confusions of the kingdom forced him six months afterwards to
summon. The latter is known as the Long Parliament, by whose
order he was ultimately executed. From the first it was opposed to
him. The king had designed that Sir Thomas Gardiner, recorder
of London, should be elected speaker of the Commons; and it was
-not doubted that he could have been chosen to one of the four seats
of the city of London. But the citizens exerted themselves so
much in opposition to the court, that the recorder was rejected in
the city; and through the influence of the citizens, and the prevalence
of feelings inimical to the court, he was not elected elsewhere. A
large portion of the members of the last Parliament were returned
to this, including all the Puritan leaders. " There was observed,"
says Clarendon, " a marvellous elated countenance in most of the
members of Parliament before they met in the house. The same
men who six months before were observed to be of very moderate




344                      CHARLES I.
tempers, and to wish that gentle remedies might be applied, without
opening the wound too wide and exposing it to the air-and rather
to cure what was amiss than too strictly to make inquisition into
the causes and original of the malady-talked now in another dialect
both of things and persons."
The Lords were animated by the same feelings as the Commons, in
whose proceedings they were usually ready to cooperate.  They
began the work of punishment by summoning Sir William  Beecher
to the bar of their house, to answer by what warrant or direction he
had searched the pockets and houses, and carried away the papers
of Lord Brooke and the Earl of Warwick after the last Parliament,
and before the expiration of the parliamentary privilege. He justified himself as clerk of the privy council, bound to execute their
warrants; and he puzzled the Lords by allowing them to infer that
he had acted under the king's direct sanction. But he afterwards
confessed that the warrants were signed by the two secretaries of
state; and on his humble petition and confession of his error, the
Lords released him from imprisonment.
The Commons commenced a long series of impeachments, and
having adopted a resolution to accuse Thomas, Lord Wentworth,
earl of Strafford, lord lieutenant of Ireland, of high treason, they
sent Mr. Pym with a message to the Lords to desire that Lord
Strafford might be sequestered from Parliament and committeda desire which was complied with by the Lords. They did not, however, neglect the king's necessities; for in a few days afterwards,
they voted him a supply of ~100,000. Ship money was referred to
a committee, to inquire into its legality. Upon their report being
made to the house, it was resolved, nullo contradicente, " that the
charge imposed upon the subjects for providing and furnishing of
ships, and the assessment and raising of money for that purpose,
commonly called ship money; the extra-judicial opinions of the
judges, published in the Star Chamber, and enrolled in the courts
of Westminster; the writs commonly called ship writs; and the
judgment in the exchequer on Mr. Hampden's case —were, severally,
against the laws of the realm, the right of property, and the liberty
of the subject, contrary to former resolutions of Parliament, and to
the Petition of Right."  The Lords on a subsequent day passed simi



PETITION OF RIGHT TO THE GRAND REMONSTRANCE.  345
lar resolutions, declaring the illegality of ship money, and the
proceedings connected with it.
The Commons next visited their own house with punishment, by
excluding four members, for being monopolists and patentees, from
sitting in Parliament.
The king, compelled to submit to all these proceedings, was now
thoroughly humbled, and we presently find leaders of the Commons
admitted to high offices under the crown; and whatever advantage,
present or prospective, was expected from these accessions, it is
from this period that we have to note the submission of Charles to
the demands of the Parliament, and the rapid descent of his executive power.  He acceded to a request of both houses for an alteration in the tenure of the judges' appointments-that for the future
the clause quaomdiu se bene gesserint might be inserted in their patents,
instead of durante bene placito, that is, during good behavior instead
of during the king's pleasure. He next passed the act for triennial
parliaments, framed on the principle deprecated in his speech; the
title of which is, " An Act for the Preventing Inconveniences
happening by the long intermission of Parliament." Although its
chief provisions were repealed by Charles II., it is so remarkable
an event in the history of the constitution that we must briefly
notice its contents. Its foundation is the ancient law that Parliament ought to be holden at least once every year for redress of
grievances. It provided that if Parliament were not summoned and
assembled before the 3d of September, in every third year, then
a Parliament should assemble on the second Monday in November
ensuing. The lord chancellor was required to take an oath to issue
the writs in due time; and in his default the peers should meet, and
any twelve or more should issue the writs. In case of their default,
the sheriffs, mayors, and bailiffs should cause elections to be made;
and lastly, in their default, the freeholders, citizens, and burgesses
should proceed to election. The Parliament should not be dissolved
or prorogued within fifty days after the time appointed for their
meeting; nor adjourned within fifty days, but by consent of either
house respectively.
He subsequently passed another act to prevent inconveniences
which may happen by the untimely adjourning, proroguing, or
16*




346                      CHARLES I.
dissolving this present Parliament. It enacted that the Parliament
should not be dissolved, nor prorogued or adjourned, unless by an
act of Parliament to be passed for the purpose; and that neither the
House of Peers nor the House of Commons should be adjourned,
unless by themselves, or their own order. This act, in rendering
Parliament indissoluble but by their own act, contravened a fundamental principle of the constitution, and whilst it superseded the
executive authority of the crown, it also took away the elective
rights of the people. The king, however, passed it.
Charles next yielded the contest respecting tonnage and poundage, by passing an act granting him those duties for less than
two months, which he had claimed for his life. It declared illegal
the right for which he had so long contended, by reciting that the
duties had been collected against the laws of the realm, in regard
that they had not been granted by Parliament, and that the
farmers, customers, and collectors had received condign punishment,
and it declared that " it is and had been the ancient right of the
subjects of this realm that no subsidy, custom, impost, or other
charge whatsoever, might or may be laid or imposed upon any
merchandise, exported or imported, by subjects, denizens, or aliens,
without common consent in Parliament."  Charles must have felt
humbled when, by accepting and passing that bill, he gave up his
claim, constantly insisted upon since his first Parliament. When
passing it, he said, in answer to the speaker, " You cannot but
know that I do freely and frankly give over that right which my
predecessors have esteemed their own —though I confess disputed,
yet so that it was never yielded by any one of them. Therefore
you must understand this as a mark of my confidence in you thus to
put myself wholly upon the love and affections of my people for my
subsistence." Charles was next called upon to give his royal assent
to two acts for abolishing the court of Star Chamber and the High
Commission Court.  He postponed his assent to these bills until, as
he said, he had time to consider them; and in consequence some
discontent arose, which he alluded to in his speech when be afterwards gave the royal assent: " Methinks it seems strange that any
one should think I could pass two bills of such importance as these
without taking some fit time to consider them; for it is no less than




PETITION OF RIGHT TO THE GRAND REMONSTRANNCE. 347
to alter, in a great measure, those fundamental laws, ecclesiastical
and civil, which many of my predecessors have established.
"If you consider (he proceeded) what I have done in this Parliament, discontent will not sit in your hearts.  I hope you remember I have granted that the judges hereafter shall hold their places
quamdiu bene se gesserint.  I have bounded the forest, not according to my right, but according to the late customs.  I have established the property of the subjects, as witness the free giving upnot the taking away-the ship money. I have established by act
of Parliament the property of the subject in tonnage and poundage,
which never was done in any of my predecessors' times. I have
granted a law for a triennial Parliament; and given way to an act
for the securing of moneys advanced for the disbanding of the armies.
I have given free course of justice against delinquents. I have put
the laws in execution against papists....
" For my part I shall omit nothing that may give you just contentment, and study nothing more than your happiness; and therefore I hope you shall see a very good testimony of it by passing
these two bills."
The king had called these laws fundamental. The courts which
they abolished had been so long used to oppress the subject, by the
Tudors as well as the Stuarts, that their abolition was the greatest
blow that had yet been given to irresponsible power.  The constitutional effect of their abolition was the transfer of all accusations and
complaints against the subject from the Star Chamber and High Commission Courts to the courts of common law, there to be tried openly by a
jury, according to the law of the land.
The first of these acts is called " An Act for the Regulating of the
Privy Council, and for taking away the court commonly called the
Star Chamber." It begins with a recital of Magna Charta, and its
train of statutes for protecting the liberty of the subject, and refers
to the statutes of Henry VII. and of Henry VIII., by the former
of which the Star Chamber was established, or at least moulded into
a new form; and it declares that the judges had not kept themselves
within the limits of the statute of Henry VII.; but had undertaken to punish where no law did warrant, and to make decrees for
things having no such authority, and to inflict heavier punishments




348                       CHARLES I.
than by any law was warranted. "And forasmuch (it proceeds)
as all matters examinable or determinable in the court of Star
Chamber may have their proper remedy and redress, and their due
punishment and correction by the common law of the land, and in the
ordinary courts of justice; and the proceedings, censures, and decrees
of that court have been found to be an intolerable burden to the subject
and the means to introduce an arbitrary power and government; and
forasmuch as the council table hath of late times assumed a power
to intermeddle in civil causes between party and party, and to determine of the estates and liberties of the subjects, contrary to the
law of the land; it ordained that the court, commonly called the
Star Chamber, should be absolutely dissolved, taken away, and determined."
The other act is called "A Repeal of a Branch of Statute, primo
Elizabethre. concerning Commissioners for Causes Ecclesiastical." It
recites the act, and the clause contained in it, by which Queen Elizabeth established the High Commission Court, and that the commissioners had to the great and insufferable wrong and oppression of
the king's subjects, used to fine and imprison them; and, therefore,
the branch of the statute on which the court was based was repealed
and made void; and persons exercising spiritual or ecclesiastical
power by authority derived from the king to inflict fine, imprisonment, or corporal punishment, were deprived of that power.
Charles next conceded the illegality of his proceedings in regard to ship money, the enlargment of forests, and the fines on the
refusal of knighthood; and extinguished his claims by giving the
royal assent to acts for abolishing them.
The " Act for the declaring unlawful and void the late proceedings touching ship money, and for the vacating of all records and
process concerning the same," declared and enacted that the charge
imposed upon the subject for the providing and furnishing of ships,
commonly called ship money, and the extra-judicial opinions of the
justices and barons, and the writs and the judgment against John
Hampden, were contrary to the laws and statutes of this realm, the
right of property, the liberty of the subject, former resolutions in
Parliament, and the Petition of Right.
The " Act for the certainty of forests and of the meets, ineers




PETITION OF RIGHT TO THE GRAND REMONSTRANCE. 349
limits, and bounds of the forest," declared that the limits and bounds
of the forests should extend no farther than those reputed and taken
in the twentieth year of King James; and that all presentments to
the contrary should be void.
The " Act for the prevention of vexatious proceedings touching
the order of knighthood," declared and enacted that thenceforth no
person, of what condition, quality, estate, or degree soever, should
be distrained or compelled by any means to take upon him the
order or dignity of knighthood; nor suffer or undergo any fine,
trouble or molestation, for not having taken on him such order or
dignity.
We may here pause to consider the effect of this extensive legislation on the power of the crown. It abolished the principal instruments of tyranny employed by the Tudors, and afterwards by
the Stuart monarchs. It declared illegal the expedients to which
Charles had resorted to raise money in the absence of Parliament;
and it put an end to his long-cherished claim, on the ground of
hereditary right, to enjoy tonnage and poundage for his life; giving
him in succession grants of that revenue for short periods of weeks
or months. The most eminent and powerful of his ministers was
attainted and put to death. It was made impossible for him to resist the meeting of Parliament once in three years, and its continuance in session for at least fifty days; while he conferred on the
Parliament then existing the prerogative, never before separated
from the crown, of continuing or dissolving itself at its will and
pleasure. But excepting the latter, which was undoubtedly an unconstitutional interference with the prerogative of the crown, these
changes were a just concession to the rights and liberties of the
people; and we may also have observed that the speeches in which
Charles gave his royal assent to these acts, have none of the defiance
and vituperation of his speeches to previous Parliaments, and rather
breathe the courteous acquiescence, if they do not also exceed the
submission, of a constitutional king.
These concessions were deemed by many a sufficient surrender
of the royal power; and Mr. Hyde, Lord Falkland, and others of
the popular party, declared in Parliament their disapproval of
further demands. After passing the acts, the king went to Scot



350                     CHARLES I.
land, where Scotch affairs required his presence; and on his return
the popular feeling had changed so much in his favor, that he made
a public entry into London, where " he was received with all imaginary expressions and demonstrations of affection and grandeur."
The recorder was warm in his praises and congratulations. He
could truly say from the representative body of the city, from
whence he had his warrant, that they met his majesty with as much
love and affection as ever citizens of London met his royal progenitors; and he added, that these expressions of joy, of love, of loyalty
he met with everywhere from the citizens of London. The king
answered that he returned with as hearty and kind affections to his
people in general, and to the city in particular, as could be desired by
his loving subjects; the first he should express by governing them all
according to the laws of the kingdom, and in maintaining and protecting the true Protestant religion. In answer to another petition
of the city that he would winter at Whitehall, he said that although he had proposed to winter at Hampton Court, he should
alter his resolution, and with all convenient speed repair to Whitehall. The king afterwards, in a speech to Parliament, referred to
his reception, " not being in doubt," he said, " that his subjects' affections were any way lessened to him in the time of his absence;
for he could not but remember, to his great comfort, the joyful re-.
ception he had at his entry into London.
Would that we could here end the tale, for England in
throwing off the royal yoke was fast becoming subject t. an
influence not less mischievous-Puritanism.  A spirit more arbitrary than monarchy now controlled the Commons, and from the
hour of its complete ascendency we read but of confusion, bloodshed, civil war, and by and by the worse than imperial despotism
which reached its incarnation in a Cromwell.  The affairs of
England never had been-never have been in a happier or more
hopeful state than at the period we have now reached; and to
the restless, meddling fiend of Puritanism in its next act, we
must trace the woful tragedy which ended the unhappy reign of
the first Charles.




CHAPTER X.
CHARLES 1. THE REIGN OF PURITANISM-FROM THE GRAND REMONSTRANCE TO THE END OF CONSTITUTIONAL
LEGISLATION UNDER CHARLES.
THE GRAND REMONSTRANCE CARRIED BY A PURITAN MAJORITY OF ELEVEN-SAYING
OF CROMWELL-DIFFERENT OPINIONS CONCERNING THE REMONSTRANCE-ITS
FUTILITY —-SKETCH OF ITS CONTENTS-OBJECT AND DETERMINATION OF THE
PURITANS-THEIR EXASPERATION OF THE KING-ROYAL IMPEACHMENT AND IMPRISONMENT OF LORD KIMBOTTON AND THE FIVE MEMBERS-DECLARATION OF
THE COMMONS-RETURN OF THE FIVE MEMBERS-SEPARATION OF KING AND PARLIAMENT-HIS EFFORTS AT A RECONCILIATION-IMPLACABILITY OF THE PURITANS-BISHOPS REMOVED FROM PARLIAMENT-THE 4 ROOT AND BRANCH BILL AABOLITION-MILITIA BILL-THE KING REFUSES HIS ASSENT-MESSAGE TO THE
KING FROM PARLIAMENT-HIS ANSWER-GENERAL REVIEW-PURITAN DESPOTISM —CROMWELL.
SHORTLY before the king's return, the Commons passed
through their house a "Declaration of the State of the Kingdom," which, as it has acquired historieal celebrity as the " Grand
Remonstrance," requires our notice. \It was the work  of the
Puritan members of the house,)being objected to and opposed
by the others as unparliamentary and  inexpedient:-unparlia;
mentary, as being an appeal to the people concerning the government and conduct of the king, and as the work of one only
of the constituent bodies of Parliament; inexpedient, as a detail
of grievances already redressed.   The draft was prepared by a
committee, and laid before the house early in November; and
after much opposition, a day was fixed for taking it into consideration, clause by clause, by the whole house, the speaker
in the chair.  The debate commenced at three o'clock in the
afternoon, and was continued until three o'clock on the follow



352                      CHARLES I.
ing morning; when, the question being put, whether the declaration as amended should pass, it was carried in the affirmative
by a majority of 159 to 148, that is, by a majority of eleven; but
a motion that it should be printed, terminated in a resolution that
it should not be printed without the particular order of the house.
The debate produced great passion and vehemence; and the excitement is made evident by a saying of OLIVER CROMWELL, who told
Lord Falkland, as they went out of the house after the debate, that
"if the Remonstrance had been rejected, he would have sold
all he had the next morning, and  never have seen England
more; and he knew there were several other honest men of the
same resolution."
This remonstrance has been considered under different aspects
by historians.  Forster, the great advocate of Puritanism, would
have us think that it "was an appeal to the people, rendered
necessary by the falsehood and unfaithfulness of the king to
all his engagements, in order to bring about a lasting adjustment
of right relations between the Commons and the crown."   Mr.
Hallam considers that " it was put forward to stem the returning
tide of loyalty, which not only threatened to obstruct the further progress of the popular leaders, but, as they would allege,
might, by gaining strength, wash away some at least of the
bulwarks that had been so recently constructed for the preservation of liberty."   We must, however,;agree with Hume, who
characterizes it "as containing  many gross falsehoods, intermingled with some evident truth." and calls it "a plain signal
for further attacks on the royal prerogative; and a declaration that the concessions already made, however important, were
not to be regarded as satisfactory; " adding that " nothing less
was foreseen, whatever ancient names might be preserved, than
an abolition almost total " of the constitutional government of
England.> The Remonstrance admits that the grievances and ovpressions it portrayed had already been removed-" the difficulties seemed
to be insuperable which, by the Divine Providence, we have
overcome."  It specifies large sums of money that had been
raised, "and yet God hath so blessed the endeavors of this
Parliallent, that the kingdom is a great gainer by all these charges."




THE REIGN OF PURITANISM.                  353
"The ship money is abolished, which cost this kingdom  above
~200,000 a year.  The coat and conduct money and other military
charges are taken away, which, in many counties, amounted to little
less than the ship money.  The monopolies are all suppressed, whereof
some few did prejudice the subject above a million yearly; the
soap, ~100,000; the wine, ~300,000; the leather must needs exceed
both, and salt could be no less than that; besides the inferior
monopolies, which if they could be exactly computed, would make
up a great sum."  It admits that the king's POWER OF EVIL was
taken away.  "That which is more beneficial than all this is, the
root of these evils is taken away; which was the arbitrary power
pretended to be in his majesty, of taxing his subjects, or charging their estates, without consent of Parliament, which is now
declared to be against law, by the judgment of both houses, and
also by an act of Parliament."
It reviews the advantages which had resulted from the impeachments and the several new  laws.  By the former, "the
living grievances, the evil counsellors and actors of these mischiefs, have been so quelled, that it is likely not only to be an
ease to the present time, but a preservation to the future."
Among the latter are named the Triennial Act and the Act to
prevent the abrupt dissolution of Parliament, which " secure aftull
operation of the present remedy and afford a perpetual spring of
remedies for the future."   " The Star Chamber, the High Commission, the courts of president and council in the North, the
immoderate power of the council table, are all taken away;
the canons and the power of canon making are blasted by the
vote of both houses; the forests are by a good law reduced to their
rzight bounds; and other things of main importance for the good of
this kingdom are in proposition. The malignants "-In this word
" malignants" the essential venom of Puritanism  already spurts
out on its opponents. The Puritans had succeeded in obtaining a majority of ELEVEN in the House of Commons, and already
all opposed to them are to be described as malignants! But
to continue-" The malignants have endeavored to work on
his majesty ill impressions and opinions of our proceedings,
as if we had altogether done our own work and not his, and




354                      CHARLES I.
had obtained from him many things very prejudicial to the
crown, both in respect of prerogative and profit.  To wipe out
the first part of this slander, we think good only to say that
all we have done is for his majesty, his greatness, honor and
support..... As to the second branch  of this slander, we
acknowledge with much thankfulness that his majesty hath passed
more good bills to the advantage of his subjects than have been
in many ages."
Having thus fully demonstrated that it is itself a mere bruturn fulmen of fanaticism, wholly unnecessary in the circumstances
of the nation, the Remonstrance next proceeds to declare the
reformation in view: "And now what hope have we but in God;
when the only means of our subsistence and power of reformation is, under Him, in the Parliament?  But what can we, the
Commons, do, without the conjunction of the House of Lords?
and what conjunction can we expect there, where the bishops
and recusant lords are so numerous and prevalent, that they are
able to cross and interrupt our best endeavors for reformation,
and by that means, give advantage to this malignant party to
traduce our proceedings?.... We confess our intention is
and our endeavors have been, to reduce within bounds that
exorbitant power which the prelates have assumed unto themselves, so contrary both to the word of God, and the laws of the
land; to which end we have passed the bill for the removing
them from their temporal power and employments, that so the
better they might with meekness apply themselves to the discharge of their functions; which bill themselves opposed, and
were the principal instruments of crossing it."   They then declare their own views of discipline and government of the Church;
and desire a general synod of divines, the results of whose consultations should be represented to the Parliament, to be there
allowed of and confirmed, and receive the stamp of authority.
They deny the charge maliciously made, that they intend to
destroy and discourage learning, declaring that they "intend to
reform and purge' the fountains of learning, the two Universities; that the streams flowing from them may be clear and
pure, and an honor and comfort to the whole land."




THE REIGN OF PURITANISM.                   55
The malignants tell the people, "'that our meddling with the
power of episcopacy hath caused sectaries and conventicles.. thus
with Elijah we are called by this malignant party, the troublers of
the state; and still, while we endeavor to reform their abuses, they
make us the authors of those mischiefs we study to prevent." The
pharisaical hypocrisy of these pretences would be sublime in any
but the Puritans. With them it was, and always has been, customary.
They finally state the courses for perfecting the work begun,
and removing all future impediments, under five heads:
1. To keep Papists in such condition as that they may not be
able to do us any hurt; and for avoiding such connivance and
favor as heretofore hath been shown to them, that his majesty
be pleased to grant a commission to some choice men named in Parliament, who may take notice of their increase, their counsels, and
proceedings; and use all due means, by execution of the laws, to
prevent any mischievous designs against the peace and safety of the
kingdom. 2. That some good course be taken to discover the false
conformity of Papists to the Church, whereby they have been admitted to places of trust. 3. That all illegal grievances and exactions
be presented and punished at the sessions and assizes; and that
judges and justices be sworn to the due execution of the Petition
of Right and other law{4. That his majesty be humbly petitioned,
by both houses, to employ such councillors, ambassadors, and ministers as the Parliament may have cause to confide in, without which
we cannot give his majesty such supplies as is desiredc) 5. That all
councillors of state may be sworn to observe the laws which concern the subject in his liberty; not to receive, or give, reward or
pension, to or from any foreign prince; that all good courses may
be taken to unite the two kingdoms of England and Scotland; to
take away all differences among ourselves for matters indifferent
concerning religion, and to unite ourselves against the common enemies, and to labor, by all offices of friendship, to unite the foreign
churches with us, in the same cause."  "If these things," it concludes, "may be observed, we doubt not but God will crown this
Parliament with such success as shall be the beginning and founda



356                      CHARLES I.
tion of more honor and happiness to his majesty than was ever yet
enjoyed by one of his royal predecessors."
Such is the Grand Remonstrance, and it must, by all but Puritans, be confessed that it is difficult to determine from what motive
it proceeded, or what object it had in view. Historians have in
general considered it as possessing no constitutional value; it is not
addressed to any great principle then in danger or in doubt, and a
document so lengthy and pretending, ends in a lame and impotent
conclusion, when it propounds amongst the remedies for bad governnment-and those the most prominent-increased vigilance towards
Papists, and a more extended union of Protestants against them.
Viewing it as a remonstrance of the House of Commons against the
tyranny or illegal government of the king, it loses its effect by the
confession that the grievances complained of had been fully redressed, and that the king's power of evil was taken away; and it is
not to be compared, in that respect, with the bold remonstrances of
the Commons to James-or even to those in the early part of this
reign, when Charles was in the plenitude of his prerogative —defying the power, and daring the punishments the kings were then able
and willing to inflict. If we view it as a measure rendered necessary to insure faithfulness of the king (for which there is no authority in the tenor or terms of the Remonstrance), we object that
the king had surrendered by acts of Parliament the prerogatives
which he had assumed, and by which he had illegally oppressed his
people; and had thus given the highest security known to the constitution, for the abandonment of his assumed prerogatives; and that
therefore an appeal to the people in anticipation of his future misconduct, was not only ungracious, but insulting. But the true view
of it is that the Remonstrance was intended to aid the design of removing from Parliament the bishops and those lords whom it so
strongly denounced as the obstacles to Puritanism. The removal of
the bishops, in order to obtain the control spiritual as well as temporal of the kingdom, was the great object of the Puritan party;
the intention to remove them is confessed in the remonstrance; but
it was almost the only point in which they could not get the concurrence of the king and the Lords. It was accomplished, however,
within a few months after the Remonstrance; and if we consider




THE REIGN OF PURITANISM.                357
the power of ambitious and self-righteous fanaticism when striving
for ascendency, and how strongly it governed the actions of the
Puritans in Parliament, it will perhaps be felt that this, and this
only, in the then subdued condition of the king, fired the energies
of these fanatics to the frenzy which the debate produced; and that
this is amply adequate to explain the resolution of Cromwell (as
the same motives animated the so-called Pilgrim Fathers) to sell all
he possessed and leave the country, if the Remonstrance had not
been carried.
We now pass to another phase in Charles's eventful life, when,
driven by exasperation to relinquish all his compliant submission to
the Commons, and losing sight of his pledged regard to their privileges, he entered into a personal contest with them.  The attempted seizure of the five members, one of the most ominous passages of
English history, is referred to. Since the Grand Remonstrance,
several subjects of dispute and irritation (sedulously stirred up and
fomented by the Puritans, who were determined that their majority
of eleven should be made the most of,) had arisen between the king
and the Parliament. One arose out of a demand by the Commons,
that the king should remove the lieutenant of the Tower from his
office, and place another, nominated by the Commons, in his rooma demand which the Peers considered to be an interference with the
royal prerogative, and in which, therefore, they refused to concur.
Then followed an unpleasant inquiry in the House of Commons, in
which the queen was involved. The Commons, too, charged twelve
bishops with high treason, for attempting to subvert the laws and
being of Parliament. Riots and tumults, stirred up by the Puritan
leaders, took place daily in the neighborhood of the houses of Parliament; and the bishops, being particularly obnoxious to the crowd,
and not daring to encounter them, they absented themselves from
Parliament. Twelve bishops protested in the House of Lords that
they had been menaced, affronted, and assaulted, on their way to the
house, and put in danger of their lives; and they went the length of
protesting,in writing,against all proceedings in the house during what
they termed their forced and violent absence. The Lords communicated the bishops' protest to the Commons, who immediately accused the
latter of high treason for interrupting the business of Parliament; (!)




358                     CHARLES I.
and the Lords were so compliant as to order the bishops to be taken
into custody. The king, also, declined to accede to an address from
the Commons for a guard; treating their fears for their safety as
groundless; assuring them of his protection, and promising condign
punishment to any one who should offer them any violence; but in
reality hurt and annoyed at their interference with his prerogative.
Events like these, occurring in one short month, were calculated to
irritate the king's temper and bewilder his judgment; but he would
not have fallen into the rash and dangerous project of seizing the
five members, if he had consulted the men whom, about this period,
he had attracted to his councils. Lord Falkland had become secretary of state in place of Vane; and Sir John Colepepper, knight
of the shire of Kent, chancellor of the exchequer; Mr. Hyde, also,
had agreed to become a minister, but was without actual office; and
to these three the king consented to yield the direction of himself and
his affairs. These accessions to the king's ministry were brought
about by Lord Digby, who had long served the king as his minister,
and whom the king had raised to the House of Lords. It was intended that Lord Digby should have ceased to be the adviser of the
king; but between the king and Digby alone the project of the
seizure of the five members was agreed and resolved upon, without
the least communication with either of the other three.
When the Parliament met after the adjournment for Christmas,
the attorney-general attended at the House of Lords, and, standing
at the clerk's table, stated that the king had commanded him to
accuse, and that he did accuse, Lord Kimbotton, a member of the
House of Peers, Mr. Holles, Mr. Pym, Mr. Hampden, Sir Arthur
Haselrigge, and Mr. Strode, members of the House of Commons,
of high treason. He delivered articles which he had received from
the king, charging them with having endeavored to deprive him of
his royal power, and to place in the subjects an arbitrary and
tyrannical power; by foul aspersions to alienate the affections of
the people from the king, and to make him odious to them; to
draw the army to disobedience. and to side with them in their
treacherous designs; that they had traitorously invited a foreign
power to invade the kingdom; that they had traitorously endeavored to subvert the rights and very being of Parliament; that they




THE REIGN OF PURITANISM.               359
had, by force and terror, endeavored to compel the Parliament to
join them in their traitorous designs, and had actually raised and
countenanced tumults against the king and Parliament; and that
they had traitorously conspired to levy, and actually had levied,
war against the king." The attorney-general demanded a select
committee to take the examination of the witnesses to be produced
by the king, and that the persons of the accused should be secured;
On the same day the king sent the sergeant-at-arms to the House
of Commons with a message demanding the five members to be delivered to the sergeant, and being delivered, that he should arrest
them of high treason. The Commons immediately ordered Lord
Falkland, the chancellor of the exchequer, and two other members, to attend the king, to inform him that the house would take
his message into consideration with as much speed as the business
would admit, and in the mean time would take care that the gentlemen should be ready to answer any legal charge made against
them. The house, also, enjoined the accused members to attend
the house daily until further orders. The king, nothing daunted,
went on the following day in person to the House of Commons,
accompanied by a guard of soldiers, to arrest the accused members.
Private information was given of his approach, and the members
were removed, the last only quitting the house as the king entered.
He passed up to the speaker's chair, which he took, and after looking about the house, and not perceiving Mr. Pym, whose person
he knew, he asked the speaker whether any of those persons were
in the house, and where they were. The speaker, falling on his
knees, replied, " I have neither eyes to see nor tongue to speak in
this place, but as the house is pleased to direct me, whose servant
I am here, and humbly beg your majesty's pardon that I cannot
give any other answer than this to what your majesty is pleased to
demand of me." The king, seeing that his attempt had been unsuccessful, addressed the house in a short speech from the speaker's
chair, saying that " when he sent the sergeant-at-arms, he expected
obedience, and not a message-that though he would be careful of
their privileges, they must know that in cases of treason there was
no privilege, and that so long as those persons he had accused were
in the house, he could not expect that it would be in the right way




360                      CHARLES I.
that he heartily wished it. But since he saw that the bircs were
flown, he would trouble them no more than to tell them he expected
they would send them to him as soon as they returned to the house;
otherwise he must take his own course to find them." He retired
amidst shouts of " Privilege! Privilege!" and the house, in great
excitement, adjourned till the next day.
When the Commons assembled, they passed a declaration that
" the king's proceedings were a high breach of the rights and privileges of Parliament, and that they could not, with the safety of
their own persons, sit any longer without a full vindication of so
high a breach, and a sufficient guard wherein they might confide."
They then adjourned to the 11th of January, but they appointed a
committee to sit in the mean time at Guildhall, with power to consider and resolve upon all things that might concern the good and
safety of the city and kingdom. The House of Lords made a
similar adjournment.  Mr. Pym  vindicated himself before the
House of Commons from the king's charges, and the answer of the
Puritan leader shows that Charles had founded his charges against
the five members wholly on account of their Parliamentary conduct; although small indeed must have been his expectation that
the charges could have been sustained in a tribunal which had participated in or sanctioned the acts charged against the accused.
But he still continued his efforts, even his personal efforts, to arrest
the members. During the short recess of Parliament he went into
the city, where the accused members were concealed, and in a speech
to the common council assembled at Guildhall, he required their
assistance in apprehending the accused. Three days afterwards he
issued a proclamation commanding officers and magistrates to apprehend and convey them to the Tower; but on the day before
Parliament reassembled, the king quitted London, and retired to his
palace at Hampton Court-never again to return to the metropolis
of his kingdom until brought there for his trial and execution.
The Parliament met on the 11th of January. The accused members were brought in triumph by water to Westminster, amidst the
plaudits of the people, and took their seats in the House of Commons. It was now apparent that all chance of reconciliation was
at an end, and both sides prepared for the civil war that was inevit



THE REIGN OF PURITANISM.                361
able; although for some time longer the forms of the constitution
were complied with, because neither party was prepared nor likely
to incur the responsibility of commencing the outbreak. The king
and Parliament were now separated, and never afterwards communicated but by messages or petitions, and by royal commission,
when it was necessary that acts, should be passed. The king was
sensible of the great error he had fallen into, and of the mischief
he had done to his own cause, by his rash proceeding. He tried to
extricate himself from the difficulty, and to conciliate the Parliament by a series of messages, acknowledging that he had interfered
with their privileges, and postponing the prosecution of the members; and ultimately he went so far as to abandon any further proceedings against them, and to offer a free pardon. But Puritanism
never forgives, and the eleven majority in the Commons would accept no reconciliation, answering every message by requisitions
which increased the difficulties of their country.
Charles endeavored to procure the mediation of the Lords. In
a message to the house he suggested "' that the Parliament should,
with all speed, fall into a serious consideration of all those particulars which they should hold necessary, as well for the upholding
and maintaining of his just and royal authority, and for the settling
of his revenue, as for the present and future establishment of
their privileges-the free and quiet enjoyment of their estates and
fortunes; the security of the true religion then professed by the
Church of Enlgland; and the settling of ceremonies in such a manner as to take away all just cause of offence."  The Lords acquainted the Commons that they had received a gracious message,
which filled their hearts full of comfort and joy; and they prepared
an answer to thank the king, and to let him know that they would
take his message into such speedy and serious consideration as a
proposition of that great importance required.  The Puritans refused to second the Peers' views, and coupled their refusal with a
demand that " the king would be pleased to put the Tower of London, with all other forts and militia of the whole kingdom, into
such hands as the Parliament should confide in." The Lords rejected the proposed addition, and the offer of the king, as well as
the demand of the Commons, came to nothing.
16




362                      CHARLES I.
The king gave the royal assent to several bills, of which the only
one demanding our attention was a bill for taking away the temporal
power of the bishops and clergy. It was the third which had been
introduced into this Parliament for a similar purpose. The first
was " A Bill to restrain Bishops and others in Holy Orders from
intermeddling in secular affairs," which was sent up to the Lords
on the 1st of May, 1641, and was carried then through all the intermediate stages to the third reading, where it was rejected by a
large majority. The second was brought in on the 20th of May,
by Sir Edward Dering, and was entitled " A Bill for the utter
abolishing and taking away all Archbishops, Bishops, their Chancellors and Commissaries, Deans and Chapters, Archdeacons, Prebendaries, Chanters, Canons, and all other their under officers."
This received the name of the " Root and Branch Bill." and is a
fair specimen of Puritan toleration.  Puritanism  has but one argument for its opponents and the institutions it desires to overthrow.
That argument is-abolition.  They are "malignant," and must,
therefore, be " utterly abolished." The Root and Branch Bill was
debated with great passion for twenty days, but was never brought
to a conclusion, having been discontinued on account of the king's
departure into Scotland.
The title of the third was "An Act for disabling all persons in
Holy Orders to exercise any temporal jurisdiction or authority."
It enacted that no archbishop or bishop, or other person in Holy
Orders, should at any time after the 15th of February, 1641, have
any seat or place, suffrage or voice, or use or execute any power or
authority in the Parliaments of this realm; nor should be of the
privy council, or justice of the peace, of oyer and terminer, or
jail-delivery; or execute any temporal authority by virtue of any
commission, but should be wholly incapable and disabled." The
Lords passed this bill almost with unanimity, only three bishops dissenting.  The king took time for consideration, which, being reported
to the Commons, they, with the imperious and indecent haste which
now characterized their proceedings, resolved that delay was denial,
and desired the Lords to join them in reasons for hastening the royal
assent. It was given a few days afterwards by commission; and




THE REIGN OF PURITANISM.               363
thus the Puritans-obtained at last the removal of the bishops from
Parliament, for which they had so long and earnestly contended.
It would have been supposed that Charles would have complied
with any demand that could be made upon him, if he assented to a
measure so sweeping and so repugnant to his feelings as that just
described; but he at length took a decided stand against the demand of the Parliament for his assent to an ordinance concerning
the militia, by which persons to be nominated by the Commons
should be intrusted with authority over the militia of the kingdom.
He declined to concur in that ordinance; and in an answer to the
Lords, through the lord keeper, he declared "that he could not
divest himself of the just power which God and the laws of his
kingdom had placed in him for the defence of his people, and to
put it into the hands of others for any indefinite time." It was
thereupon " resolved that the king's answer was a direct denial of
their desires; that those who advised it were enemies to the state;
that if the king should persist in it, it would hazard the peace and
safety of his kingdom,- unless a speedy remedy were applied by the
wisdom and authority of both houses of Parliament; that such
parts of the kingdom as had put themselves in a position of defence
against the common danger, had done nothing but what was justifiable; that it would be a great hazard to the kingdom if the king
removed to any remote parts from his Parliament, where they could
not have convenient access to him on all occasions; and they desired, also, that the prince might come to St. James's, or to some
place near London, where he might continue."
These resolutions were embodied in a message from both houses
to the king, in which it was declared " that they were enforced in
all humility to protest that if the king should persist in his denial,
the dangers and distempers of the kingdom are such as will
endure no longer delay; and unless he graciously assured them,
by their messengers, that he would speedily apply his royal
assent to the satisfaction of their former desires, they should be enforced, for the safety of his majesty and the kingdom, to dispose of
the militia in such manner as they had propounded, and they resolved
to do it accordingly."
The king returned an answer on the 2d of March, from his




364                      CHARLES I.
palace of Theobald's. He said: "I am so much amazed at this
message, that I know not what to answer. You speak of jealousies
and fears. Lay your hands on your hearts and ask yourselves
whe'ther I may not likewise be disturbed with fears and jealousies;
and if so, I assure you this message hath nothing lessened them.
For the militia, I thought so much of it before I sent that answer,
and am so much assured that the answer is agreeable to what in justice or reason you can ask, or I in honor grant, that I shall not
alter it in any point. For my residence near you, I wish it might
be so safe and honorable that I had no cause to absent myself from
Whitehall. Ask yourselves whether I have or not. For my son,
I shall take that care of him which shall justify me to God as a
father, and to my dominions as a king. To conclude: I assure you
upon my honor, that I have no thought but of peace and justice to
my people, which I shall, by all fair means, seek to preserve and
maintain; relying upon the goodness and providence of God for
the preservation of myself and my rights."
We must here stop. We have brought the contest between the
king and the Parliament to an issue, and we have come to the end
of the legislation by which we proposed to limit the extent of our
historical inquiries. There is no further statute to record in this
reign; all that follows is without regard to the principles or practice of the ancient constitution.  The difficult task will not be attempted of estimating the degrees of blame or approval which the
parties deserve, in the several stages of the great contest; but upon
a general view of it, not many will be found who, testing the incidents by the principles of the constitution, would justify the proceedings of Charles, or condemn those of the Parliament, down to
the epoch of the Grand Remonstrance; for few will doubt that if
his policy and course of action had not been broken down, despotism would have been established. It is from the time of his departure for Scotland-after having passed the series of acts for extending and confirming the liberties of the people-that it may be
unhesitatingly asserted that the Parliament would have served their
country best by taking their stand on the laws then established, and
on the institutions as modified by those laws, and by directing their
great power and influence to keep the king within the bounds of




THE REIGN OF PURITANISMI.              365
constitutional government, under competent ministers, of whom he
about that time made a selection that the Commons might have
approved. When we look forward to the Restoration, and notice
the laws that were then passed by way of complement to the legislation of this reign, we feel assured that such laws might have been
obtained from Charles at the same time as the other laws; and
with much less reluctance than those repealed at the Restoration,
which he submitted to pass. It is common to reply to such observations by pointing out the perfidiousness of Charles's character,
and his secret resolve to overthrow the concessions involuntarily
made, if he should recover his power or the vigilance of the Commons should be relaxed; and it must be confessed that his attempt
against the five members very much weakened the hope which appears before that attempt to have been entertained, that he would
content himself with the constitutional position in which the new
laws placed him, and would carry on the government under the
guidance of constitutional ministers. But, on the other hand, it
must be considered that Charles had received a severe lesson-that
he could not hope to avert the vigilance and determination of the
Commons-and that the failure of his attack on the five members
prepared him for yet greater submission; and it would have required-probably on his part, and certainly on the part of his ministers-the venture of their lives and fortunes, to have attempted
again to govern the country, and to raise supplies, on principles put down by law and condemned by all parties.  On the
whole, therefore, we must observe that all the good in this reign
was accomplished before Puritanism had gained an ascendency
among the Commons; and that from the day when they discovered,
by the vote on the Grand Remonstrance, that they had a petty majority in that house, the downward progress of affairs began. The
truth is, Puritanism is always proscriptive-always aiming at despotic domination. In England, in the reign of the unhappy Charles,
as in these unhappy States to-day, it must and will rule, and its rule
is ruin!
The breach between Charles and the Parliament became complete in August, and during nearly eighteen years the country went
through the vicissitudes of civil war, of government by the Parlia



36 6                     CHARLES I.
ment, by the army, by a council of state, by a council of officers;
enjoying the blessings of peace and settled government only when
CROMWELL, in the name of Puritanism, obtained and exercised absolute power. During this whole period the constitution was disregarded; and although imitated by Cromwell in the institutions he
established, these could not acquire the freedom and independence
which distinguished the ancient institutions, and they became merely instruments of Cromwell's will. During the Interregnum, we
must not look for any contribution to the history of the constitution; it was suspended throughout the whole period, only recovering its action at the Restoration. To that event, therefore, we must
now pass; although we may admit that the events of the intermediate period are of the highest interest, and well deserving of
laborious study.




CHAPTER XI.
CHARLES II.-THE RESTORATION.-ABOLITION  OF THE FEUDAL
TENURES.-HABEAS CORPUS ACT.
ENGLAND UNDER CROMWELL-REACTION FROM PURITANISM AT THE RESTORATIONTENDENCY TO RESTORE ABSOLUTISM-MODERATION OF THE ROYALISTS-THE
FEUDAL TENURES —FORMER EFFORTS TO ABOLISH THEM-THEIR FINAL ABOLITION
IN THIS REIGN-HABEAS CORPUS-ORIGIN OF THE NAME-PROVISION OF MAGNA
CHARTA-HISTORICAL SKETCH-AUTHOR OF THE BILL-ITS REPRODUCTION IN
THE UNITED STATES-ITS TWELVE PROVISIONS-ITS IMPORTANCE-ILLUSTRATION FROM TME PARALLEL HISTORY OF FRANCE AND ENGLAND-CONCLUSION.
THE history of England during the period of the Interregnum,
displays the agitation of a people deprived of their ancient government, but so enamored of its forms and principles, that when
all opposition was subdued, and power was finally concentrated in
one ruler, he found it necessary to imitate the ancient system as
far and as closely as the new elements would assimilate to the old,
Oliver Cromwell, avoiding the title of king from dread of the disapproval of the army, took the title of Protector, with analogous
powers; and he instituted two houses with similar functions to the
houses of Parliament. But not regarding the principle of freedom,
which the adoption of the ancient system involved, or being unable
to carry on his government in accordance with it, he did not forbear from the exercise of despotic authority; and when he had issued his own ordinances for the levying of taxes, he imitated the
worst proceedings of his predecessor, Charles, by the intimidation
of parties who resisted payment, by imprisonment of their advocates, and by coercion or removal of the judges.
Seldom if ever has so great a change come over the manners
and customs of any nation as took place in England on the accession of Charles II.: instead of that fanatic gloom which, during




368           CHARLES II. THE RESTORATION.
the reign of the Commonwealth, had repressed every expression of
pleasure and induced a rude austerity of manners, a taste for
elegance and refinement, too frequently degenerated into luxury
and voluptuousness, distinguished the new court and pervaded
every class of society. We should, however, form a wrong estimate of the nature of this change did we suppose that the great
body of the people had become on a sudden less religious or less
moral: it was the reaction which naturally follows a period of undue restraint.  " Men," says a contemporary writer, " freed from
the bondage under which they had been held, madly rushed into
every excess, and indulged in licentiousness in proportion to the
severity of the restraint under which they had been held." Even
the Puritans themselves had undergone a great and remarkable
change since their elevation to power; they were no longer that
small and virtuous body which they formerly had been, but a heterogeneous mass, united only by extravagant whims about dress,
diversions, and postures, which brought the very name of religion
into ridicule with the multitude. Before the civil wars, says Macaulay, even those who most disliked the opinions and manners of the
Puritan were forced to admit that his moral conduct was generally, in
essentials, blameless; but this praise was now no longer bestowed,
and unfortunately was no longer deserved. The general fate of sects
is to obtain a high reputation for sanctity while they are oppressed,
and to lose it as soon as they become powerful. Soon the world
begins to find out that the godly are not better than other men, and
argues, with some justice, that, if not better, they must be much
worse; and in no long time, all those signs which were formerly regarded as characteristic of a saint, are characteristic of a knave.
Such was the tone of public feeling at the time of the Restoration;
both Presbyterians and Independents had lost the confidence of the
nation; and the character of the restored king tended in no slight
degree to favor the spread of latitudinarian opinions. Accustomed
to the lax morality of the Continental courts, Charles II., although
a thorough gentleman in manners, refined and elegant in tastes,
amiable in disposition, and agreeable in conversation, was nevertheless a voluptuary, and addicted beyond measure to sensual indulgence. That such a character in the monarch should have com



THE RESTORATION.                     369
pletely impressed itself upon the people, may be fairly charged
upon the tyrannous Puritanism-more tyrannous than the most unlimited monarchy-under which the nation had so long groaned.
But, further than to notice that alike in action and reaction,
Puritanism is the most vicious pest of a community, we do not care to
carry these remarks. Nor does our space permit us to dwell at large
on the events of the reign of Charles II. To our purpose it suffices
to narrate' what are to us the two great acts of this reign-the abolition of the feudal tenures, and the passage of the Act of Habeas
Corpus.  But for these celebrated acts we could take little pleasure
in the story of this period. Throughout the whole of it we witness
the recovery of the monarchical element to almost absolute power,
through the willing prostration of the people, tired of the changes
and insecurity of the Interregnum, eager to place their idol on the
highest pinnacle of sovereignty; and owing such liberty as remained to the forbearance of the king's ministers.  Hyde, as lord chancellor, was the chief minister.  He had resided with Charles abroad,
where as titular lord chancellor he had managed Charles's affairs;
and now since his return, the king, giving himself up to pleasure,
left everything in his chancellor's hands. To his constitutional
training are to be ascribed the moderation of the Government, in
not taking advantage of the transports that prevailed.  He resolved (says Burnet! not to stretch the prerogative to what it was
before the wars; and would neither set aside the Petition of Right,
nor endeavor to raise the courts of Star Chamber or High Commission again-which could have been easily done if he had set about
it; nor did he think fit to move for the repeal of the act for triennial Parliaments, till other matters were well settled.  He took
care indeed to have all things extorted by the Long Parliament
from Charles I. repealed; but in regard to revenues he had no
mind to put the king out of the necessity of recourse to Parliament.
" The old civil polity," says AMacaulay," was now, by the general
consent of both the great parties, reestablished. It was again exactly what it had been when Charles I., eighteen years before,
withdrew from his capital. All those acts of the Long Parliament
which had received the royal assent were admitted to be still in
force. One fresh concession, a concession in which the Cavaliers
16*




370            CHARLES II. THE RESTORATION.
were even more deeply interested than the Roundheads, was easily
obtained from the restored king. The military tenure of land had
been originally created as a means of national defence. But in the
course of ages, whatever was useful in the institution had disappeared; and nothing was left but ceremonies and grievances. A landed proprietor who held an estate under the crown by knight service-and it was thus that most of the soil of England was heldhad to pay a large fine on coming to his property. He could not
alienate one acre without purchasing a license. When he died, if
his domains descended to an infant, the sovereign was guardian, and
was not only entitled to great part of the rents during the minority, but could require the ward, under heavy penalties, to marry
any person of suitable rank. The chief bait which attracted a
needy sycophant to the court was the hope of obtaining, as the reward of servility and flattery, a royal letter to an heiress. These
abuses had perished with the monarchy. That they should not re.
vive with it was the wish of every landed gentleman in the kingdom.
They were therefore solemnly abolished by statute; and no relic
of the ancient tenures in chivalry was suffered to remain, except
those honorary services which are still, at a coronation, rendered
to the person of the sovereign by some lords of manors.";'
The surrender of these feudal revenues had been the subject
of treaty with James I.; but the treaty failed, as we have seen,
from the uncertainty felt by the Parliament whether, when they
had granted the compensation, the surrender would be binding on
the king's successors, on the principles of divine right. Charles I.,
at the treaty of Newport, consented to surrender the revenues for
an annual sum of ~100,000. The Long Parliament voted the abolition of them unconditionally, declaring that they had a right to
take away the burden, as a recompense to the whole kingdom for
having ventured their lives and fortunes in that time of great distraction; and from  that period the revenues were not collected,
and the court of wards ceased to exercise its functions. The Convention Parliament, as it was called which settled the Restoration,
proceeded on the principle of compensation; and resolved, as a
consideration of the surrender, to make up the king's entire revenue to ~1,200,000 per annnem, to be derived in part from a per



ABOLITION OF FEUDAL TENURES.               371
petual excise of all beer and other liquors; a tax which had been
introduced by the Long Parliament for short periods, yet not without being charged with relieving the landowners at the expense of
the community. The act which affected the abolition of the feudal
tenures, also imposed the duties which were its compensation. It
is entitled " An Act for taking away the Court of Wards, and
Liveries, and Tenures in Capite and by Knight's Service, and Purveyance, and for settling a Revenue on HIis Majesty in lieu thereof."
It adopted the intermission of that court by the Long Parliament,
on the 24th of February, 1645, as the date. of the abolition; and
it enacted " that the court of wards and liveries, and all wardships, liveries, primer seisins, and ousterlemains, values and forfeitures of marriage, by reason of any tenure of the king's majesty,
or of any other, by knight service, and all other gifts, grants, charges, or incidents arising for or by reason of wardship, liveries, primer seisins, or ousterlemains, be taken away and discharged from
the 24th of February, 1645, and that all fines for alienations, and
also aid pur fil marier, and pur fair fitz chevalier, be taken away and
discharged as from the same day."
All tenures of land held of the king or of any other person or
persons, bodies politic or corporate, were declared to be turned
into free and common socage, discharged from the feudal charges
and incidents, from the 24th day of February, 1645; and all future
grants of lands by the king to be in free and common socage."
But it is declared that the act should not take away copyhold
tenures, frank-almoign, nor the honorary services of grand-serjeantry.
The act consulted the principles of human nature by transferring the guardianship of children under twenty-one, and not married
at the time of their father's death, and the management of their
lands and property, to guardians to be appointed by the father, by
deed in his lifetime, or by his will.
It was enacted that henceforth "no  money or other thing
should be paid or levied, in regard of any provision, carriages, or
purveyance for the king, his heirs or successors; that no person,
under warrant, commission, or authority, under the great seal or
otherwise, by color of making provision or purveyance for the king




372            CHARLES II. THE RESTORATION.
or queen, their children or household, should take any timber, fuel,
cattle, corn, grain, malt, hay, straw, victual, cart, carriage, or
other thing whatever, of any of the subjects of the king, without
the full and free consent of the owner, had and obtained without
menace or enforcement; nor summon, warn, take, use, or require
any of the king's subjects to furnish or find horses, oxen, or other
cattle, ploughs, wains, or other carriages, without such full and free
consent; that no preemption should be allowed or claimed on behalf of the king, queen, or children of the royal family, in market
or out of market; but forever after it should be free to all the
king"s subjects to sell, dispose, or employ their goods to any other
persons as they list."
But this statute did not take away that right of the crown
called escheat, by which it succeeds to the lands of persons who die
without heirs, or whose heritable blood has been attainted by treason or felony, and it still remains a principle of the constitution,
that the crown, as parens patric, is entitled to the property of persons who die leaving no heirs. But in modern days that right is
possessed with no advantage to the crown, because its right is surrendered to the public use; and with little advantage to the public,
because the Government is always open to petitions for the disposal
of the property in favor of persons having equitable or moral
claims to it.
Thus ended the oppression of the feudal system in England,
which had, for ages, rested like an incubus upon the people. Whatever struggles might yet remain, the spirit of individual freedom
was at length established, and we cannot wonder that the same
reign which saw the final abolition of this system of obsolete
autocracy should have also seen the passage of the Habeas Corpus
Act.
HABEAS CORPUS is an ancient English writ which has been used
for a variety of purposes from the remotest antiquity.  It is addressed to a sheriff or other officer, and commands him to have the
body of the person named at a certain place and time. When all
writs were in Latin, the characterizing words of this writ were ut
habeas corpus, and the name has long survived the use of these
words in the writ. One of the purposes for which it was used was




HABEAS CORPUS ACT.                    373
to recover freedom which had been wrongfully taken away.  Personal liberty was always asserted by the common law from  its
earliest ages; and it was always assailed by kings who would be
tyrants, with an earnestness proportioned to their tyranny.  Hence
it became necessary to declare in the most solemn manner in Magna
Charta, that "no man shall be taken or imprisoned but by the
lawful judgment of his peers, or by the law of the land; " and
this clause, more than any other, has given to that instrument the
name of the palladium of English liberty, a name which is equally
deserved by the writ of habeas corpus. For, on the one hand, the
great charter did not enact this as a new rule of law, but only declared it to be the law of the land; and on the other, its force and
influence gradually faded, in despite of repeated formal confirmations; and this law became actual and operative only by means of
the habeas corpus. This writ was issuable from the king's bench,
and it was used to protect or restore liberty, by bringing the prisoner
before the court, whose duty it was to order his immediate discharge
if he were not restrained of his liberty according to law. But it
was evaded by courts and sheriffs who were disposed to support
royal or ministerial usurpations; and it became so powerless that
early in the reign of Charles I. the court of king's bench formally
decided that they had no power to release any person imprisoned
without any cause assigned, if he were imprisoned by the express
command of the king, or by the lords of the privy council. The
Petition of Right asserted the illegality of this decision, and declared
that s" no freeman should be imprisoned or detained without cause
shown, to which he may make answer according to law." But the
means of enforcing this rule were still imperfect, and personal liberty
was still violated; and by 16 Charles I., ch. 10, various provisions
were enacted, intended to make the writ of habeas corpus more
effectual. But this was not enough. The judges still continued
to refuse the writ at their pleasure, or issued it only in term time;
and prisoners were sent to distant jails, where sheriffs and jailers
refused to obey it; or if the party imprisoned were brought before
an examining court, his liberty was still withheld on frivolous pretences. At length, in the thirty-first year of the reign of Charles II.
(1679), what is now understood by the Habeas Corpus Act was en



374            CHARLES II. THE RESTORATION.
acted. It consisted of a variety of provisions, devised with so
much skill and so well adapted to give each other mutual support,
that it may safely be asserted that personal liberty must be safe so
long as this law remains in force. Evasion of it in England is
almost impossible; in the United States it was till recently believed
to be entirely so; and it can be successful only by a positive and
open violation of the law, or by a distinct denial of the writ. We
owe this admirable law-which is the protection of the innocent,
not the defence of the guilty-to Lord Shaftesbury, who, when he
was appointed lord chancellor, had received no legal education
whatever, and made no pretence to any knowledge of technical law;
nor could his best friends, then or since, claim for him the credit
of any especial regard for liberty, or any moral excellence whatever.
It happened, however, that his personal purposes at the moment
were such as to induce him to make this law as practical and as
effectual as possible; and he brought to this object all the resources
of his genius and experience, and by their help succeeded in giving
to the act an efficiency which the lawyers who had been at work
upon it for many generations had never been able to impart.
The English statute has been copied in the United States without essential change; the variations from it being only such as
would, in the opinion of various legislatures, make its provisions
more stringent, and the security it gives to liberty more certain
and available. The provisions of the statutes of habeas corpus,
now in force in the different States, may be stated generally thus:
1. The writ commands the sheriff, or other person to whom it
is directed, to have the body of the person who is said to be restrained of his liberty forthwith before the justice issuing it, or
some other tribunal competent to try the questions the case may
present; and to summon the person restraining the alleged prisoner
to be there also, and bring with him the cause of the restraint, that
all parties may then and there submit themselves to whatever may
be lawfully adjudged and ordered in their behalf. The language
varies in different statutes which give the form of the writ; but it
is always substantially as above.'2. The writ must be granted, as of right, by any of the justices
of the higher courts, and, in their absence or inaccessibility, by any




H ABEAS CORPUS ACT.                   375
of those of a lower court, down to justices of the quorum; the law
covering in this respect a wide range, so as to insure to every applicant some one from whom this redress or remedy may come.
3. It must be granted at any time when it is prayed for, whether
a court be sitting or not.
4. It must be granted either to the party himself restrained of
his liberty, or to any one applying for him; and if his name be unknown, the best description which can readily be given is sufficient.
5. The application must be in writing, and must be verified by
the oath of the applicant.
6. The sheriff or other officer to whom it is directed must render prompt obedience and make immediate service, and return the
writ forthwith, with a full statement of his doings.
7. It must be returned before the proper magistrate at chambers,
if a court to which it is made returnable be not then in session.
8. Upon the return, the alleged prisoner being present, the case
is tried; and, unless sufficient cause for his imprisonment is shown,
he is ordered to be discharged at once.
9. If not wholly discharged, the court or magistrate may order
him to be discharged on giving reasonable bail, if he be held for
any bailable offence or cause.
10. In some of the States it is provided that the writ may not
issue if the party restrained be imprisoned for crime, or in execution civil or criminal, and by lawful warrant. In others these exceptions are not made, but if facts like these appear on trial the
prisoner is remanded.
11. In general, after a party has been discharged on habeas
corpus, he cannot again be imprisoned or restrained of his liberty
for the same cause.
12. The issuing of the writ by the magistrate applied to, and
prompt and full obedience to it by the officer or other person to
whom it is directed, are secured by heavy penalties; and also by
the fact that any applicant to whom the writ is refused by one
magistrate may apply to another, and the number of those to whom
he may thus resort is so large that it is hardly possible for them
all to be corrupted, or for any reason indisposed to render due
obedience to the law.




376            CHARLES II. THE RESTORATION.
The vast importance of this law can be appreciated oAly by
those who have experienced or studied the history of despotism.
Whether the ruling authority of the nation (be it in the hands of
one or many) shall be absolute or subordinated to law, must depend,
in the last result, upon its power over the persons of those who are
subject to it. Whatever be the law, if there be a sovereign, whether
emperor or president, who may disregard it, and put in strict imprisonment those who resist him; if he may substitute his own
commands for law, and take away from society and from all power
of resort to law those who do not obey him, it is obvious that there
can be no disobedience arid no resistance which is not rebellion if
it be put down, or revolution if it succeed. The histories of
France and of England offer the most perfect illustration of this.
Beginning from the feudal ages, those countries stood about
upon an equality in respect to the power of the sovereign and the
personal rights of the subject. Under some of her monarchs, of
the Plantagenet and Tudor families, England seemed to be yielding
herself up to a more absolute tyranny than was known to her
neighbors. But as the ages went on, it became apparent in France
that the subjection of the citizen to the sovereign became with
every generation more complete. By insidious rather than open
increases, the power of the king, or rather the power of ministers
who acted in the name of the king, to imprison at their pleasure
whom they would, for political or personal, public or private reasons, became so entirely established that every minister of the
crown had, it is said, a large number of blank letires de cachet (or
letters under the privy seal of the king), which he. could fill with
names at his pleasure, and by which the police were authorized and
commanded to imprison the party named, and hold him in prison
at the pleasure of the minister. The Bastile became a recognized
instrument of state; and in its cells lay those who were placed
there only at the suspicion or the caprice of some minister, and who
remained there only because they were forgotten.  Of course this
state of things could not last, for no one acquainted with human
nature could doubt that such irresponsible and enormous power
would be prodigiously abused. Therefore the French revolution
came to do the work which must be done, and only revolution could




HABEAS CORPUS ACT.                    377
do; and therefore the reign of terror almost necessarily replaced
the gilded and graceful despotism which had been its parent. But
this could not endure, and perhaps the changes which have since
given to that country almost every possible form of government,
agree only in proving that in France there is not that training
for personal liberty, that inwrought determination to be personally
free at all hazards, which can become a part of the life-blood of a
nation only after many generations have enjoyed the blessings of
freedom, and can alone effectually secure and permanently preserve
that liberty which is the fruitful spring of every other good.
If we now turn to England, we have seen that in the AngloSaxon times, despotism was rarely attempted and never successful;
that the laws and institutions of those days are all founded on the
presumption of personal liberty and rights; that this element of
character might for a time be suppressed or enfeebled, but that it
could never be annihilated; that it rose from time to time into
prominence and activity, and, as opportunity could be offered or
could be made, gradually asserted itself, first in the fact of a common law, which the courts regarded as binding upon them; then, in
the recognition of personal liberty and right as an unquestionable
principle of the common law; then by such timely assertions as in
Magna Charta, in the Petition of Right, and finally in that Act of
Habeas Corpus which we may well hope has settled the question
for all time. That the habeas corpus was once sufficiently valued
in the United States may be inferred from the fact that the Federal
Constitution provides that " the provisions of the act shall not be
suspended, unless when in case of rebellion or invasion, the public
safety may require it;" and there is a provision to the same effect
in some of the State constitutions.  Everywhere the statute itself is
enacted, and, so far as words can have the effect, made stringent and
effectual. The time, however, has now passed when laws and constitutions may be trusted as complete securities and guarantees of
rights. It is not certain, it is very doubtful, whether in these States
the value of the right of personal liberty is sufficiently apprehended.
BAdhutc sub judice lis est.  It is a question that will verily speedily
be set at rest.




CHAPTER XII.
JAMES II.-THE REVOLUTION.-BILL OF RIGHTS. -ACT OF
SETTLEMENT.
PRELIMINARY OBSERVATIONS-THE EXCLUSION BILL-WHIG AND TORY-LAWS
AGAINST ROMANISTS-JAMES, AT HIS ACCESSION, ACKNOWLEDGES THEIR OBLIGATION-SUPPLIES GRANTED BY PARLIAMENT FOR THE TERM OF THE KING'S
LIFE-JAMES INSISTS ON SUPPLIES FOR A STANDING ARMY, BUT DECLARES
THAT HE HAS BROKEN AND WILL BREAK THE TEST LAWS-ANSWER OF THE
COMMONS-ILLEGAL REVIVAL OF THE HIGH COMMISSION COURT-DARING DECLARATION OF INDULGENCE PUBLISHED BY THE KING-EXECUTION OF ITTRIAL OF THE SEVEN BISHOPS-PRINCE OF ORANGE LANDS-FLIGHT OF JAMES
MEETING OF LORDS AND COMMONS AND THE COMMON COUNCIL OF LONDON-CONVENTION AT WESTMINSTER-JOINT RESOLUTION OF LORDS AND COMMONSSETTLEMENT OF THE CROWN ON WILLIAM AND MARY-SUBSTANCE OF THE BILL
OF RIGHTS-ACT OF SETTLEMENT-ITS NECESSITY-SUBSTANCE OF IT-CONCLUSION.
THE contest between prerogative and freedom was brought to a
conclusion in the reign of James II., who ascended the throne on
the 6th of February, 1685. His brief reign, if we estimate it by
the events which resulted from it, is perhaps the most important in
the history of the constitution. He was a Romanist of the sternest
bigotry. He was so confident in his divine right as king, that he
seemed blinded to any danger from the open profession of the proscribed religion; and in reliance on that right, and on the passive
obedience of the people, he violated almost every fundamental law.
The simple narrative of his illegal acts furnished an ample justification of his removal from the throne; and the reaffirmation and parliamentary declaration of the violated laws formed the chief part of
the code of rights and liberties deemed necessary for a permanent
constitutional government. The Declaration of Rights which followed his abdication was founded, not upon abstract or theoretical




BILL OF RIGHTS. ACT OF SETTLEMENT.          379
principles of government, but upon what, in legal phrase, may be
called James's overt acts of treason to the nation.
There had been in the reign of Charles II., so much dislike and
even dread of James's succession to the throne-a dread increased
by the panic spread by the so-called Popish plot —that a large
party in the nation endeavored to exclude him from the succession,
on the ground of his being a Papist. The House of Commons
passed a bill for that purpose, and for banishing him from the kingdom; from which fate he was only saved by a majority in the House
of Lords. The Exclusion Bill long and deeply agitated the nation
and the Government; and when James had ascended the throne the
people had become divided into two parties, under the then new
but now familiar names of Whigs and Tories. Those who were
inimical to Popery-as well on religious grounds as from the encouragement it gave to the doctrines of divine right and passive
obedience, but who were at the same time favorable to religious
toleration among Protestant sects-were called Whigs; while those
who,holding those doctrines as of irremovable obligation, and although
they supported the exclusive authority of the Protestant established
Church, would not concur in depriving even a professed Papist of
his right of succession to the throne-were called Tories.
At the accession of James, the laws for the exclusive establishment of the Church of England were clear, and defined by laws not
only explicit, but extremely rigorous in their provisions. Charles
II. had on several occasions endeavored to produce some alleviation
of these, but he was told by Parliament that he had no power of
interference, and that no alteration could be made but by an act of
Parliament. Those laws, therefore, the king of England was bound
to conform to, both in his own person and in his government.
James felt the force of these obligations. In his first address to his
privy council he said he had been reported to be a man for arbitrary
power; but that was not the only story that had been made of him,
and he should make it his endeavor to preserve the government in
church and state as it was then established. But he made it
known after his brother's funeral, that he had died a Roman Catholic; and he himself soon afterwards appeared publicly at mass.
Parliament assembled on the 10th of May, 16785, by virtue of




380             JAMES II. THE REVOLUTION.
proclamations issued, as well for the meeting of Parliament as for
laying, on James's sole authority, the customs and duties which constituted the revenue of the late king, but which expired at his
decease. The House of Commons contained a large majority of adherents of James-the effect of changes made in the last reign in the
charters of the corporations of the parliamentary boroughs, for the
purpose of bringing them under the influence of the crown. The
king opened the session on the 22d of May, and renewed the declaration he had made to the privy council. The House of Commons
without delay unanimously voted to him for his life the whole
revenue settled on the late king. The same Parliament also granted
to James for his life-as a supply for the navy-an imposition on
wines and vinegar which had been received by Charles II., and a
further sum of ~400,000 towards the extraordinary expenses incurred by the rebellion of the Duke of Monmouth. Thus in regard
of one of the first constitutional principles, James was rendered independent of Parliament for supplies, unless in case of war. The
consequences might have been foretold. The king, thus provided
and unrestrained, proceeded to carry out the ardent objects of his
life, the restoration of the ascendency of the Roman Catholic religion and the absolute and unshackled power of the monarch. The
history of his reign shows that James, in the prosecution of his designs, was restrained by no law-by no compassion for those whom
he opposed or oppressed-and by no consideration of his duties as
king under a constitutional government.  To assist him in these
objects he entered into secret arrangements with the king of France,
and, notwithstanding the liberality of Parliament, accepted from
him large sums of money-that monarch receiving his recompense
in the betrayal of the interests of the English nation.
The first open design of James was to obtain the sanction of
Parliament for the maintenance of a standing army, and their approval of his having appointed popish officers to serve in the army
during Monmouth's rebellion, without having taken the tests against
popery. The Parliament met in a new session on the 9th of November, after the supression of the rebellion.  James in his speech
reflected on the insufficiency of the militia.  He hoped " everybody
would be'convinced it is not sufficient for such occasions; and that




BILL OF RIGHTS. ACT OF SETTLEMENT.            381
there is nothing but a good force of well-disciplined troops, in constant pay, that can defend us from such as either at home or abroad
are disposed to disturb us."  His concern for the peace and quiet
of his subjects, he said, made it necessary to increase the number
to the proportion he had done; and to support the charge of keeping such a body of men on foot, he asked for a supply.  " Let no
man take exception," he added, " that there some officers in the
army not qualified, according to the late tests, for their employments.
The gentlemen, I must tell you, are most of them well known to
me; and having formerly served with me on several occasions, and
always approved the loyalty of their principles by their practice, I
think them now fit to be employed under me; and I will deal
plainly with you, that, after having had the benefit of their service
in such a time of need and danger, I will neither expose them to
disgrace, nor myself to the want of them, if there should be another
rebellion to make them necessary to me."
The proposal for a standing army, and for a violation of the test
acts, changed the obsequiousness of the Parliament, and roused an
opposition partaking of the spirit of former parliaments. The court
party carried a resolution for a supply, but with the addition that a
bill be brought in to render the militia more useful, equivalent to
a declaration against a standing army; and the Commons afterwards voted an address, in which they represented to the king that
" the officers in the army, who had not complied with the tests, could
not by law be capable of their employments, and that their incapacities could not be taken away but by act of Parliament." They
said they would pass an act to indemnify them from the penalties
on this occasion, and they besought the king to give such directions
as that no apprehensions or jealousies might remain in the hearts of
his subjects.  Disapprobation of the king's proceedings spread to
the House of Lords, extending even to the bench of bishops; and
James, perceiving that resolutions would be passed disapproving of
his proceedings, prorogued the Parliament, sacrificing even the vote
for the supply, which had not been perfected by an act. Parliament was kept in existence by repeated prorogations for about a
year and a half, but without holding a session, and no Parliament
assembled again during this reign.




382             JAMES II. THE REVOLUTION.
The High Commission Court established by Elizabeth had been
abolished by a statute of the Long Paliament, and its abolition had
been confirmed by a statute of Charles II., which also declared
that no similar court should be constituted.  Yet in contempt of
those laws a court was erected called the Court of Commissioners
for Ecclesiastical Causes, to which, without any other authority than
his own, James gave summary and arbitrary jurisdiction over all
ecclesiastics, and of which he made his infamous Lord Chancellor,
Jeffreys, perpetual president. The Bishop of London, who had
offended the king by the part he had taken in Parliament, was the
first person summoned before the new court, by which he was suspended from his office.
In exercise of his assumed prerogative to dispense with the
statute law, James published a declaration of indulgence, of the most
daring character.  He declared " that the execution of all, and all
manner of penal laws in matters ecclesiastical, should be immediately
suspended; and he gave free leave to all his subjects to serve God
their own way, either in public or private, provided they took special
care that nothing was preached or thought tending to alienate the
people from his government."  He declared that the oaths of allegiance and supremacy, as also the several tests and declarations of
25 and 30 Charles II., should not for the future be required to be
taken by any person who was or should be employed in any place
of trust; and that it was his pleasure and intention to grant his
royal dispensations under the great seal to all persons so employed,
who should not take the said oaths. He gave free pardon to all
non-conformists, recusants, and other his loving subjects, for all
crimes and things committed against the penal laws.
Under the authority of this declaration (which, however much
we may now admire its principles, was clearly in derogation of law,
and opposed to the feelings of his people) James took Jesuits into
his service, and appointed Roman Catholics to the highest offices of
the state, and to commands in the army and navy. He went so far
as to appoint Roman Catholic priests to ecclesiastical offices in the
universities of Oxford and Cambridge; and when his nominees
were refused, he deprived the heads of the universities of their
dignities. fie sent an extraordinary ambassador to the Pope; al



BILL OF RIGHTS. ACT OF SEITLEMENT.           383
though intercourse with the Roman pontiff was, by the laws of England, high treason.  He also gave audience to a nuncio from the
Pope. Four Roman bishops were publicly consecrated in the royal
chapel, and the popish regular clergy attended his palace in the
habits of their order. He appointed a Roman Catholic to be of his
privy council, and altered the privy counsellors' oath by expunging
the declaration against foreign prelates.
In April, 1688, James renewed his declaration for liberty of conscience, and issued an order in council, requiring the bishops to send
copies of it to all their clergy, and to order the clergy to read it on
two several Sundays in time of divine service. The archbishop and
six bishops petitioned the king to lay before him the reasons that
determined them not to obey the order in council. They were admitted to his presence.  James threateningly insisted upon being
obeyed, and they retired with the words, " The will of God be done."
They were immediately committed to the Tower, and an information
presented against them for a misdemeanor, on which they were
afterwards brought to trial.
The trial of the seven bishops is a memorable instance of the
bigotry, injustice, and cruelty of James, and of the corrupt subservience of his judges. But this wicked scheme failed of success.
The bishops were triumphiantly acquitted.  Universal joy spread
throughout the nation. James was informed of the acquittal when
he was reviewing at Hounslow the standing army that he unconstitutionally maintained. Whilst partaking of refreshments in the
commander's tent, he heard the shouts of the soldiers, and he inquired the cause.  "Nothing," was the reply, " but the joy of the
soldiers that the bishops are acquitted." " Do you call that nothing? " said the king; " so much the worse for them."
Time was not allowed to James for the fulfilment of the vengeance these words implied. The nation's power of endurance was
at an end; the most conscientious believers in the doctrine of the
indefeasible right of kings, felt unable to justify the king's conduct,
and many of the Tory aristocracy joined the Whigs to remove James
from the throne, and to place there, in his room, William, Prince of
Orange, and his consort the Lady Mary, daughter of James-both
Protestants, and the prince the head of the Protestant interest in




384             JAMES II. THE REVOLUTION.
Christendom. An invitation was sent to them by a large number
of the peers, both spiritual and temporal, and of the leading men
amongst the commons; and William published a declaration, accepting the invitation, with the view, as he stated, "to get a free Parliament assembled, which might secure the national religion and liberty
under a just and legal government for the future." James prepared
to defend his throne, but when William arrived, supported by an
army, James, with his queen and infant son (born at this important
juncture), fled to France.
The throne being vacant by the flight of James, the lords spiritual and temporal assembled in their house, to about the number of
ninety, and William desired that all persons who had been members
of the House of Commons in the reign of Charles II. (for the
assembling of James's Parliament might be considered as a recognition of his continued authority), with the lord mayor and aldermen of London, and fifty of the common councilmen, would meet
at St. James's, on the 26th of September; 1687.
One hundred and sixty members, with the mayor and corporation, met accordingly, and they adopted an address to the prince,
which the Lords had previously voted (and which was subscribed by
about ninety peers), humbly desiring him to take upon him the
administration of public affairs, and the disposal of the revenue, until the meeting of a convention to be called. They further humbly
desired him to cause letters to be written, subscribed by himself, to
the lords spiritual and temporal, being Protestants, and to the several counties, universities, cities, boroughs, and Cinque Ports-the
letters to the counties to be directed to the coroners or clerks of the
peace; of the universities, to the chancellors; and of the cities
and boroughs, to the chief magistrates-directing them to choose,
within ten days, such a number of persons to represent them, as
were of right to be sent to Parliament. They were required to
meet at Westminster, on the 22d of January, 1688. The convention met accordingly, and both houses agreed to an address, that the
prince should take upon himself the government, which by a message he consented to do. The Commons next proceeded to settle
the basis of the future monarchy.
The converse theory to that of the divine right of kings is, that




BILL OF RIGHTS. ACT OF SETTLEMENT.           385
kings reign by virtue of a contract, theoretically assumed to have
been made between them and the people at the origin of the government-a theory which implies responsibility on the part of the king,
and a remedy in the people if the king violate the assumed contract.
The first step of the Ihouse of Commons, in which the Whig party
was predominant, was to assert that principle in the following
resolution:
"That King James II., having endeavored to subvert the constitution of the kingdom, by breaking the original contract between
king and people, and having, by the advice of Jesuits and other
wicked persons, violated the fundamental laws, and withdrawn himself out of the kingdom, has abdicated the government, and that the
throne is thereby vacant."
The resolution was the work of only one day, and it passed without a division of the house. It was carried to the Lords, for their
concurrence, on the 28th of January, by Mr. Hampden, the grandson of him of the same name who first shook the prerogative of
the Stuart kings.
The Lords took the resolution into consideration in a committee
of the whole house, and afterwards communicated to the Commons
that they concurred in it, with two amendments. Instead of " abdicated " they would have " deserted " put in, and they would have the
words " and that the throne is thereby vacant," left out.  Conferences followed, the second being a free conference, in which the
resolution was debated, orallv, by the managers of the respective
houses. The Lords, on the 7th of February, signified to the Commons
that they had agreed to the vote without any alterations.
The crown was settled, by both houses, on William and Mary,
jointly during their lives, and on the survivor; the administration
of the government being committed to William alone during his life.
The principles of the futnre government were embodied in the celebrated DECLARATION OF RIGHTS, which was presented to William and
Mary, seated on the throne, at Whitehall, in the presence of both
houses of Parliament, by the speaker of the House of Lords, on the
13th of February, 1688.  On that day they became, and were proclaimed, king and queen of England, deriving their authority from
the joint declaration of the lords and commons, and holding the
17




386             JAMES II. THE REVOLUTION.
crown on the principles and subject to the limitations prescribed in
the Declaration or Bill of Rights. The substance of this celebrated
declaration is as follows:
"' Whereas the late King James II., by the assistance of divers
evil counsellors, judges, and ministers employed by him, did endeavor to subvert and extirpate the Protestant religion, and the
laws and liberties of this kingdom,
" 1. By assuming and exercising a power of dispensing with and
suspending of laws, and the execution of laws, without the consent
of Parliament.
"2. By the committing and prosecuting divers worthy prelates,
for humbly petitioning to be excused from concurring to the said
assumed power.
" 3. By issuing and causing to be executed a commission under
the great seal for erecting a court called the Court of Commissioners
for Ecclesiastical Causes.
" 4. By levying money for and to the use of the crown, by pretence of prerogative, for other time, and in other manner, than the
same was granted by Parliament.
" 5. By raising and keeping a standing army within this kingdom in time of peace, without consent of Parliament, and quartering
soldiers contrary to law.
" 6. By causing several good subjects, being Protestants, to be
disarmed, at the same time when Papists were both armed and employed, contrary to law.
" 7. By violating the freedom of election of members to serve in
Parliament.
"8. By prosecutions in the Court of King's Bench, for matters
and causes cognizable only in Parliament; and by divers other arbitrary and illegal courses.
"9. And whereas of late years partial, corrupt, and unqualified
persons have been returned and served on juries in trials, and particularly divers jurors in trials for high treason, which were not freeholders;
" 10. And excessive bail hath been required of persons committed in criminal causes, to elude the benefit of the laws made for
the liberty of the subjects;




BILL OF RIGHTS. ACT OF SETTLEMENT.             387
"11. And excessive fines have been imposed; and illegal and
cruel punishments inflicted;
" 12. And several grants and promises made of fines and forfeitures, before any conviction or judgment against the persons upon
whom the same were to be levied;
" All which are utterly and directly contrary to the known laws
and statutes and freedom of this realm."
The declaration then recites the abdication of the throne by
James II., the summoning of the convention held on the 22d of
January, 1688, and that the lords spiritual and temporal, and Commons, did in the first place (as their ancestors in like case had usually
done), for the vindicating and asserting their ancient rights and
liberties, declare:
" 1. That the pretended power of suspending of laws, or the
execution of laws, by royal authority, without consent of Parliament,
is illegal.
" 2. That the pretended power of dispensing with laws, or the
execution of laws, by regal authority, as it hath been assumed and
exercised of late, is illegal.
"3. That the commission for erecting the late Court of C(ommissioners for Ecclesiastical Causes, and all other courts and commissions of like nature, are illegal and pernicious.
" 4. That levying money for or to the use of the crown by pretence of prerogative, without grant of Parliament, for longer time,
or in any other manner than the same is or shall be granted, is
illegal.
H i.   That it is the right of the subjects to petition the king,
and all commitments and prosecutions for such petitioning are ille.
gal.
" 6. That the raising or keeping a standing army within the
kingdom in time of peace, unless it be with consent of Parliament,
is against law.
"' 7. That the subjects which are Protestants may have arms for
their defence suitable to their conditions, and as allowed by
law.. 8. That election of members of Parliament ought to be free.
9~ That the freedom of speech, and debates or proceedings in




388             JAMES II. THE REVOLUTION.
Parliament, ought not to be impeached or questioned in any court
or place out of Parliament.
"10. That excessive bail ought not to be required, nor excessive
fines imposed; nor cruel and unusual punishments inflicted.
" 11. That jurors ought to be duly empanelled and returned;
and jurors which pass upon men in trials for high treason, ought
to be freeholders.
" 12. All grants and promises of fines and forfeitures of particular persons before conviction, are illegal and void.
"13. And for redress of all grievances, and for the amending,
strelg.thening, and preserving of the laws, parliaments ought to be
held frequently."
The convention on the same day passed an act which declared
that the Lords spiritual and temporal, and Commons, convened at
Westminster on the 22d of January, 1688, and there sitting on the
13th of February following, were the two houses of Parliament,
notwithstanding any defect of form. It repealed the old oaths of
allegiance and supremacy required to be taken by members of the
houses of Parliament, and substituted a new oath of allegiance to
King William and Queen Mary, and acknowledging their supremacy. It also passed an act for establishing a coronation oath. Thus
the great event in English history, and change in the constitution
and dynasty-THE REVOLUTION-was complete.
Queen Mary died in 1694, and the son of' her sister Anne having also died, all hope was lost of the succession to the crown taking
place in the course provided by the Bill of Rights. In 1704, therefore, the ACT OF SETTLEMENT was passed, by which the Princess
Sophia, electress and duchess-dowager of Hanover-daughter of
Elizabeth, late queen of Bohemia, and granddaughter of James I.
-was declared to be the next in succession to the throne in the
Protestant line; and after the death of William, and of the Princess
Anne of Denmark, and in default of issue of Anne and William,
the crown was settled on the Princess Sophia, and the heirs of her
body, being Protestants.
By the course of events the crown passed to her son George I.,
then elector of Hanover, and the wise foresight of our ancestors in
the provisions made, became manifest when the throne actually




BILL OF RIGHTS. ACT OF SETTLEMENT.             389
passed to a king not a native of the kingdom, and being a sovereign of another country. The provisions of the Acr OF SETTLEIENT,
which are declared to be " for securing our religion, laws, and liberties," are as follows:
"Whosoever shall hereafter come to the possession of this
crown, shall join in communion with the Church of England, as by
law established.
" In case the crown and imperial dignity of this realm shall hereafter come to any person not being a native of this kingdom of England, this nation be not obliged to engage in any war for the defence of any dominions or territories which do not belong to the
crown of England, without the consent of Parliament.
" No person who shall hereafter come to the possession of this
crown shall go out of the dominions of Eilgland, Scotland, or Ireland, without consent of Parliament.
" From and after the time that the further limitation by this act
shall take effect, all matters and things relating to the well governing of this kingdom, which are properly cognizable in the privy
council by the. laws and customs of this realm, shall be transacted
there, and all resolutions taken thereupon shall be signed by such
of the privy council as shall advise and consent to the same.
" After the limitation shall take effect as aforesaid, no person born
out of the dominions of England, Scotland, or Ireland, or the dominions thereunto belonging (although he be naturalized or made a
denizen), except such as are born of English parents, shall be capable to be of the privy council, or a member of either house of
Parliament, or to enjoy any office or place of trust, either civil or
military, or to have any grant of lands or tenements or hereditaments from the crown to himself, or to any other or others in trust
for him.
" No person who has an office or place of profit under the king, or
receives a pension from the crown, shall be capable of serving as a
member of the House of Commons.
" After the limitation shall take effect as aforesaid, judges' commissions be made qzamndiu se bene gesserint, and their salaries ascertained and established; but upon the address of both houses of
Parliament, it may be lawful to remove them.




390            JAMES II. THE REVOLUTION.
" That no pardon under the great seal of England be pleadable to
an impeachment by the Commons in Parliament."
The Declarations of Rights and the Act of Settlement may be
considered as the complement of Magna Charta and the Petition of
Right, in declaring and fixing the prerogatives of the crown, and the
rights of the people in relation to the crown. Since the Act of
Settlement there has been no statute expressly directed' to curb the
royal prerogative; but the executive power of the crown has been
diminished by the growth of the power of Parliament-especially of
the House of Commons-and the establishment of the system of
parliamentary government. That system has silently grown up
since the Revolution, and at its root lies the maxim-that all the
acts of the crown must be advised and transacted by ministers responsible to Parliament.
The Revolution terminated the contest between prerogative and
freedom, and settled the basis of a limited monarchy and constitutional government. ( From that period the principles laid down in
the Bill of Rights have never been disputed, lthough in the changes
of administration, and under the influence oA party spirit, they may
sometimes have been departed from. They have, however, in our
times obtained a solidity which it is to be hoped is unassailable;
and they have been confirmed and added to by,     t,      a
eeco"  of wise, enlightened, and impartial legislation, by which the
security of the throne has been increased, and the rights and liberties of the people maintained and enlarged.-)




An Act declaring the Rights and Liberties of the Subject, and settling the Succession of the Crown.
WHEREAS the Lords Spiritual and Temporal, and Commons, assembled at Westminster, lawfully fully and freely representing all the
Estates of the People of this Realm, did, upon the thirteenth Day
of February in the Year of our Lord one thousand six hundred
and eighty-eight, present unto their Majesties, then called and known
by the Names and Stile of William and ifary, Prince and Princess
of Orange, being present in their proper Persons, a certain Declaration in Writing, made by the said Lords and Commons, in the
Words following; viz.
" Whereas the late King James the Second, by the assistance
of divers evil Counsellors, Judges and Ministers employed by him,
did endeavor to subvert and extirpate the Protestant Religion, and
the Laws and Liberties of this Kingdom.
" 1. By assuming and exercising a Power of dispensing with
and suspending of Laws, and the Execution of Laws, without
Consent of Parliament.
"2. By committing and prosecuting divers worthy Prelates, for
humbly petitioning to be excused from concurring to the said assumed Power.
" 3. By issuing and causing to be executed a Commission under
the Great Seal for erecting a Court called, The Court of Commissioners for Eclesiastical Causes.
" 4. By levying Money for and to the Use of the Crown, by




392                    BILL OF RIGHTS.
Pretence of Prerogative, for other Time; and in other Manner,
than the same was granted by Parliament.
" 5. By raising and keeping a Standing Army within the Kingdom in Time of Peace, without Consent of Parliament, and quartering Soldiers contrary to Law.
" 6. By causing several good Subjects, being Protestants, to
be disarmed, at the same Time when Papists were both armed and
employed, contrary to Law.
" 7. By violating the Freedom of Election of Members to serve
in Parliament.
" 8. By Prosecutions in the Court of King's Bench, for Matters
and Causes cognizable only in Parliament; and by divers other
arbitrary and illegal Courses.
"9. And whereas of late Years, partial, corrupt and unqualified Persons, have been returned and served on Juries in Trials,
and particularly divers Jurors in Trials for High Treason, which
were not Free-holders.
" 10. And excessive Bail hath been required of Persons committed in criminal Cases, to elude the Benefit of the Laws made for the
Liberty of the Subjects.
"' 11. And excessive Fines have been imposed; and illegal and
cruel Punishments inflicted.
" 12. And several Grants and Promises made of Fines and Forfeitures, before any Conviction or Judgment against the Persons,
upon whom the same were to be levied.
" All of which are utterly and directly contrary to the known
Laws and Statutes, and Freedom of this Realm.
" And whereas the said late King James the Second having abdicated the Government, and the Throne being thereby vacant, his
Highness the Prince of Orange (whom it hath pleased Almighty God
to make the glorious Instrument of delivering this Kingdom from
Popery and arbitrary Power) did (by the Advice of the Lords
Spiritual and Temporal, and divers principal Persons of the Commons) cause Letters to be written to the Lords Spiritual and Temporal, being Protestants; and other Letters to the several Counties,
Cities, Universities, Boroughs, and Cinque-ports, for the choosing
of such persons to represent them, as were of right to be sent to




BILL OF RIGHTS.                  393
Parliament, to meet and sit at Westminster upon the two and twentieth Day of January in this Year one thousand six hundred eighty
and eight, in order to such an Establishment, as that their Religion,
Laws, and Liberties might not again be in Danger of being subverted: upon which Letters, Elections having been accordingly
made,
"And thereupon the said Lords Spiritual and Temporal, and
Commons, pursuant to their respective Letters and Elections,
being now assembled in a full and free Representative of this
Nation, taking into their most serious Consideration the best
Means for attaining the Ends aforesaid; do in the first Place (as
their Ancestors in like Case have usually done) for the vindicating
and.a~tigng their ancient Rights and Liberties declare:
"1. That the pretended Power of suspending of Laws, or the
Execution of Laws, by regal Authority, without Consent of Parliament, is illegal.
"2. That the pretended Power of dispensing with Laws or the
Execution of Laws, by regal Authority, as it hath been assumed
and exercised of late, is illegal.
" 3. That the Commission for erecting the late Court of Commissioners for Eclesiastical Causes, and all other Commissions and
Courts of like Nature, are illegal and pernicious.
" 4. That levying Money for or to the Use of the Crown, by
Pretence of Prerogative, without Grant of Parliament for longer
Time, or in other Manner than the same is or shall be granted, is
illegal.' ""5. That it is the Right of the Subjects to petition the King,
and all Commitments and Prosecutions for such Petitioning are
illegal.
" 6. That the raising or keeping a Standing Army within the
Kingdom in Time of Peace, unless it be with Consent of Parliament, is against Law.
i, 7. That the Subjects which are Protestants, may have arms
for their defence suitable to their conditions and as allowed by
Law.
" 8. That Election of Members of Parliament ought to be free...-9. That the Freedom of Speech, and Debates or Proceedings
17*




394                   BEIL OF RIGHTS.
in Parliament, ought not to be impeached or questioned in any
Court or Place out of Parliament.
" 10. That excessive Bail ought not to be required, nor excessive Fines imposed; nor cruel and unusual Punishments inflicted.
" 11. That Jurors ought to be duly impanelled and returned,
and Jurors which pass upon Men in Trials for High Treason ought
to be Freeholders.
" 12. That all Grants and Promises of Fines and Forfeitures of
particular Persons before Conviction, are illegal and void.
" 13. And that for Redress of all Grievances, and for the
a   ing, strengthening, and preserving of the Laws, Parliaments
ought to be held frequently.
"And they do claim, demand, and insist upon all and singular
the Premisses, as their undoubted Rights and Liberties; and that
no Declarations, Judgments, Doings, or Proceedings, to the Prejudice of the People in any of the said Premisses, ought in any wise
to be drawn hereafter into Consequence or Example.
" To which Demand of their Rights they are particularly encouraged by the Declaration of his Highness the Prince of Orange,
as being the only Means for obtaining a full Redress and Remedy
therein.
" Having therefore an entire Confidence, that his said Highness
the Prince of Orange will perfect the Deliverance so far advanced
by him, and will still preserve them from the Violation of their
Rights, which they have here asserted, and from all other Attempts
upon their Religion, Rights and Liberties,
"II. The said Lords Spiritual and Temporal, and Commons,
assembled at Westminster, do resolve, That William and Mary,
Prince and Princess of Orange, be, and be declared King and
Queen of England, France and Ireland, and the Dominions thereunto belonging, to hold the Crown and Royal Dignity of the said
Kingdoms and Dominions to them and the said Prince and Princess during their Lives, and the Life of the Survivor of them; and
that the sole and full Exercise of the Regal Power be only in, and
executed by the said Prince of Orange, in the Names of the said
Prince and Princess, during their joint Lives; and after their
Deceases, the said Crown and Royal Dignity of the said Kingdoms




BILL OF RIGHTS.                    395
and Dominions to be to the Heirs of the Body of the said Princess,
and for Default of such Issue to the Princess Anne of -Denmark,
and the Heirs of her Body; and for Default of such Issue to the
Heirs of the Body of the said Prince of Orange. And the Lords
Spiritual and Temporal, and Commons, do pray the said Prince
and Princess to accept the same accordingly.
" III. And that the oaths hereafter mentioned be taken by all
Persons of whom the Oaths of Allegiance and Supremacy might be
required by Law, instead of them; and that the said Oaths of
Allegiance and Supremacy be abrogated.
"I, A. B., do sincerely promise and swear, That I will be
faithful and bear true Allegiance, to their Majesties King William
and Queen ilMary. So help me God.
" I, A. B., do swear, That I do from my Heart abhor, detest,
and abjure, as impious and heretical, that damnable Doctrine and
Position, That Princes excommunicated or deprived by the Pope, or
any Authority of the See of Rome, may be deposed or murdered by their
Subjects, or any other whatsoever.  And I do declare that no foreign
Prince, Person, Prelate, State or Potentate hath, or ought to have,
any Jurisdiction, Power, Superiority, Pre-eminence, or Authority,
Ecclesiastical or Spiritual, within this Realm.  So help me God."
IV. Upon which their Majesties did accept the Crown and
Royal Dignity of the Kingdoms of England, France and Ireland, and
the Dominions thereunto belonging, according to the Resolution
and Desire of the said Lords and Commons contained in the said'Declaration.
V. And thereupon their Majesties were pleased, That the
said Lords Spiritual and Temporal, and Commons, being the two
Houses of Parliament, should continue to sit and with their Majesties' royal Concurrence make effectual Provision for the Settlement
of the Religion, Laws and Liberties of this Kingdom, so that the
same for the future might not be -in Danger again of being subverted; to which the said Lords Spiritual and Temporal, and Commons, did agree and proceed to act accordingly.
V1. Now, in pursuance of the Prefliisses, the said Lords Spiritual and Temporal, and Comlmons, in Parliament assembled, for
the ratifying, confirming and establishing the said Declaration, and




396                   BILL OF RIGHTS.
the Articles, Clauses, Matters, and Things therein contained, by
the Force of Law made in due Form by Authority of Parliament,
do pray that it may be declared and enacted, That all and singular
the Rights and Liberties asserted, and claimed in the said Declarations, are the true, antient, and indubitable Rights and Liberties
of the People of this Kingdom, and so shall be esteemed, allowed,
adjudged, deemed, and taken to be, and that all and every the
Particulars aforesaid shall be firmly and strictly holden and observed, as they are expressed in the said Declaration; and all
Officers and Ministers whatsoever shall serve their Majesties and
their Successors according to the same in all Times to come.
VII. And the said Lords Spiritual and Temporal, and Coinmons, seriously considering how it hath pleased Almighty God, in
His marvellous Providence, and merciful Goodness to this Nation,
to provide and preserve their said Majesties' royal Persons most
happily to reign over us upon the throne of their Ancestors, for
which they render unto him from the Bottom of their Hearts their
humblest Thanks and Praises, do truly, firmly, assuredly, and in
the Sincerity of their Hearts think, and do hereby recognize,
acknowledge and declare, That King James the Second, having
abdicated the Government, and their Majesties' having accepted
the Crown and royal Dignity as aforesaid, their said Majesties did
become, were, are, and of right ought to be, by the Laws of this
Realm, our Sovereign Liege Lord and Lady, King and Queen of
_Lngland, France and Ireland, and the Dominions thereunto belonging, in and to whose princely Persons the royal State, Crown, and
Dignity of the said Realms, with all Honours, Stiles, Titles, Regalities, Prerogatives, Powers, Jurisdictions, and Authorities, to the
same belonging and appertaining, are most fully, rightfully, and
entirely invested and incorporated, united and annexed.
VIII. And for preventing all Questions and Divisions in this
Realm, by Reason of any pretended Titles to the Crown, and for
preserving a Certainty in the Succession thereof, in and upon which
the Unity, Peace, Tranquillity, and Safety of this Nation doth,
under God, wholly consist'and depend, The said Lords Spiritual
and Temporal, and Commons, do beseech their Majesties that it
may be enacted, established and declared, That the Crown and




BILL OF RIGHTS.                    39'7
regal Government of the said Kingdoms and Dominions with all
and singular the premisses thereunto belonging and appertaining,
shall be and continue to their said Majesties, and the Survivor,
during their Lives, and the Life of the survivor of them: And that
the entire, perfect, and full Exercise of the Regal Power and Government be only in, and executed by his Majesty, in the Names of
both their Majesties during their joint lives; and after their
Deceases the said Crown and Premisses shall be and remain to the
Heirs of the Body of her Majesty; and for Default of such Issue,
to her Royal Highness, the Princess Anne of ]Denmark, and the
Heirs of her Body; and for Default of such Issue, to the HIeirs of
the Body of his said Majesty: And thereunto the said Lords Spiritual and Temporal, and Commons, do, in the Name of all the
People aforesaid, most humbly and faithfully submit themselves,
their Heirs and Posterities for ever; and do faithfully promise,
That they will stand to, maintain, and defend their said Majesties,
and also the Limitation and Succession of the Crown herein specified and contained, to the utmost of their Powers, with their Lives
and Estates, against all Persons whatsoever, that shall attempt any
Thing to the contrary.
IX. " And whereas it hath been found by Experience, that it
is inconsistent with the Safety and Welfare of this Protestant
Kingdom, to be governed by a Popish Prince, or by any King or
Queen marrying a Papist; " the said Lords Spiritual and Temporal,
and Commons, do further pray that it may be enacted, That all and
every Person and Persons that is, are, or shall be, reconciled to, or
shall hold Communion with, the See or Church of Rome, or shall
profess the Popish Religion, or shall marry a Papist, shall be excluded, and be forever incapable to inherit, possess, or enjoy the
Crown and Government of this Realm, and Ireland, and the Dominions thereunto belonging, or any part of the same, or to have, use
or exercise any regal Power, Authority or Jurisdiction within the
same; and in all and every such Case or Cases the People of these
Realms shall be, and are hereby absolved of their Allegiance; and
the said Crown and Government shall from time to time descend
to, and be enjoyed by such Person or Persons, being Protestants, as
should have inherited and enjoyed the same, in case the said Per



398                    BILL OF RIGHTS.
son or Persons so reconciled, holding Communion, or professing, or
marrying as aforesaid, were naturally dead.
X. And that every King and Queen of this Realm, who at any
Time hereafter shall come to and succeed in the Imperial Crown of
this Kingdom, shall on the first Day of the Meeting of the first
Parliament, next after his or her coming to the Crown, sitting in
his or her Throne in the House of Peers, in the Presence of the
Lords and Commons therein assembled, or at his or her Coronation,
before such Person or Persons who shall administer the Coronation
Oath to him or her, at the Time of his or her taking the said Oath
(which shall first happen) make, subscribe, and audibly repeat the
Declaration mentioned in the Statute made in the thirtieth year of
the Reign of King Charles the Second, intituled, An Act for the
more effectual preserving the King's Person and Government, by disabling Papists from sitting in either House of Parliament. But if it shall
happen, that such King or Queen, upon his or her Succession to
the Crown of this Realm, shall be under the Age of twelve Years,
then every such King or Queen shall make, subscribe, and audibly
repeat the said Declaration at his or her Coronation, or the first Day
of the Meeting of the first Parliament as aforesaid, which shall first
happen after such King or Queen shall have attained the said Age
of twelve Years.
XI. All which their Majesties are contented and pleased shall
be declared, enacted and established by authority of this present
Parliament, and shall stand, remain, and be the Law of this
Realm for ever; and the same are by their said Majesties, by
and with the Advice and Consent of the Lords Spiritual and
Temporal, and Commons, in Parliament assembled, and by the
Authority of the same, declared, enacted and established accordingly.
XII. And be it further declared and enacted by the Authority aforesaid, That from and after this present Session of
Parliament, no dispensation by Non obstante of or to any Statute,
or any Part thereof, shall be allowed, but that the same shall be
held void and of no Effect, except a dispensation be allowed of
in such Statute, and except in such Cases as shall be specially




BeLL OF RIGHTS.                  399
provided by one or more Bill or Bills to be passed during
this present Session of Parliament.
XIII. Provided that no Charter, or Grant, or Pardon, granted
before the three-and-twentieth day of October, in the Year of our
Lord one thousand six hundred and eighty-nine, shall be any
ways impeached or invalidated by this Act, but that the same
shall be and remain of the same Force and Effect in Law, and
no other, than as if this Act had never been made.




Act of 19ettlement.
[The Act of Settlement (XII. and XIII. William III., Cap. II.) provided that
on the decease, without heirs, of William and the Princess Anne of Denmark, the
succession to the throne of England should devolve upon the Princess Sophia,
Electress and Duchess-Dowager of Hanover, grand-daughter of James I. This
act, which it is unnecessary to give entire, is entitled, " An Act for the further
Limitation of the Crown, and better securing the Rights and Liberties of the
Subject."  The following are its constitutional provisions:]
WHEREAS, it is requisite and necessary that some further Provision be made for securing our Religion, Laws and Liberties,
from and after the Death of his Majesty and the Princess Anne
of Denmark, and in Default of Issue of the Body of the said
Princess, and of his Majesty respectively; Be it enacted by the
King's most Excellent Majesty, by and with the Advice and
Consent of the.Lords Spiritual and Temporal, and Commons, in
Parliament assembled, and by the Authority of the same,
" That whosoever shall hereafter come to the Possession of the
Crown, shall join in Communion with the Church of England, as
by Law established.
" That in case the Crown and Imperial Dignity of this Realm
shall hereafter come to any person, not being a native of this
Kingdom of England, this Nation be not obliged to engage in any
War for the Defence of any Dominions or Territories which do
not belong to the Crown of England, without the Consent of
Parliament.
"That no Person who shall hereafter come to the Posses



ACT OF SETTLEMENT.                   401
sion of this Crown, shall go out of the Dominion of England,
Scotland, or Ireland, without the Consent of Parliament.
"That from after the Time that the further Limitation by
this Act shall take Effect, all Matters and Things relating to
the well governing of this Kingdom, which are properly cognizable
in the Privy Council by the Laws and Customs of this Realm,
shall be transacted there, and all Resolutions taken thereupon
shall be signed by such of the Privy Council as shall advise and
consent to the same.
" That after said Limitation shall take Effect as aforesaid, no
Person born out of the Kingdoms of England, Scotland, or Ireland,
or the Dominions thereunto belonging (although he be naturalized
or made a Denizen, except such as are born of English Parents),
shall be capable to be of the Privy Council, or a Member of
either House of Parliament, or to enjoy any Office or Place of
Trust, either Civil or Military, or to have any Grant of Lands,
Tenements, or Hereditaments from the Crown, to himself or to
any other or others in Trust for him.
" That no Person who has an Office or Place of Profit under
the King, or receives a Pension from the Crown, shall be capable
of serving as a Member of the House of Commons.
" That after the said Limitation shall take Effect as aforesaid, Judges' Commissions be made Quamdiu se bene gesserint, and
their Salaries ascertained and established; but upon the Address
of both Houses of Parliament it may be lawful to remove
them.
" That no Pardon under the Great Seal of England be pleadable to an Impeachment by the Commons in Parliament.
" And whereas the Laws of England are the Birth-right of
the People thereof, and all the Kings and Queens, who shall
ascend the Throne of this Realm, ought to administer the Government of the same according to the said Laws, and all their Officers and Ministers ought to serve them respectively according
to the same "-The said Lords Spiritual and Temporal, and
Commons, do therefore further humbly pray, That all the Laws
and Statutes of this Realm for securing the established Religion,
and the Rights and Liberties of the People thereof, and all




402                ACT OF SETTLEMENT.
other Laws and Statutes of the same now in Force, may be ratified and confirmed, and the same are by his Majesty, by and with
the Advice and Consent of the Lords Spiritual and Temporal,
and Commons, and by Authority of the same, ratified and confirmed accordingly.




CHAPTER XIII.
COLONIAL CONSTITUTIONS.
INTRODUCTORY OBSERVATIONS-CONSTITUTIONAL POSITION OF THE COLONISTS-LAW
OF NATIONS ON THE SUBJECT OF COLONIAL SETTLEMENTS: IN COUNTRIES HAVING LAWS AND CONSTITUTIONS; IN COUNTRIES NOT HAVING LAWS AND CONSTITUTIONS-APPLICATION OF IT TO THE COLONIES-THEIR INTERIOR POLITICSPROVINCIAL ESTABLISHMENTS-PROPRIETARY GOVERNMENTS-CHARTER GOVERNMENTS-MIXED GOVERNMENT- CONSTITUTIONS OF THE COLONIES-VIRGINIA
— PLYMOUTH COLONIES-MASSACHUSETTS-NEW HAMPSHIRE —MAINE-CONNECTICUT-RHODE ISLAND-MAR YLAND-NEW  YORK-NEW  JERSEY-PENNSYLVANIA-DELAWARE-NORTH AND SOUTH CAROLINA-GEORGIA.
WE have now come to a period at which the justice and enlightenment of England were to be submitted to severe tests. After a
contest of four hundred and seventy-three years, extending from
the day of Runnymede to the revolution which dethroned the Stuart
dynasty, the rights and liberties of every English subject were at
length secured by constitutional checks upon the royal power, and
by a Parliament in which one house, composed of freely chosen
popular representatives, was vested with the power of hindering
legislation which might be injurious to the people. The rights of
person and of property were now secure in England. It remained
to be determined whether Englishmen, in the enjoyment of these
rights at home, would stand by and support their fellow subjects in
maintaining and defending them in the colonial settlements of North
America.
The colonies had been permanently established under various
auspices during the troubled reigns of the unhappy Stuarts and the
earlier monarchs who succeeded them-apparently an unpropitious
period for founding governments. Until the Revolution it was
doubtful whether absolute or constitutional authority would prevail




404               COLONIAL CONSTITUTIONS.
in England; and although the monarchy, as regulated by the Bill
of Rights and Act of Settlement, was afterwards so limited as to
protect the subject from the encroachments of prerogative at home,
yet of the constitutional relations of colonial dependencies to the
mother country and the crown there still appeared to be no very clear
intelligence, as there was certainly no authoritative exposition.
Yet the English colonists of North America were clear on one
point.  They maintained that all the ancient rights and liberties of
Englishmen were theirs by birthright; that' to them, as much as
to the Englishmen at home, belonged the guarantees of Magna
Charta, and at a later date, of the Petition and the Bill of Rights;
that in removing from their native land to its colonial possessions,
they had sacrificed no portion of their ancient rights; and that, as
Englishmen, they were entitled still to be protected by the guarantees of liberty which covered them before their emigration.
The law of nations, in the matter of colonial settlements, was
altogether in their favor. There are, in general, two cases, which
may be briefly stated as follows:
I. If the territory to be colonized is uninhabited, or only occupied by savages or wandering tribes, so that the country is without
established laws or government, then the Government of which the
colonists are subjects is immediately supreme, and all its laws, both
for the regulation and for the protection of its subjects, are at once
in force so far as they are applicable to the situation and condition
of an infant colony.  The artificial refinements and distinctions,
says Blackstone, " incident to a great and commercial people, are
neither necessary nor convenient for them, and therefore are not in
force." What shall be admitted and what rejected, at what times
and under what restrictions, must be decided by the joint action of
their own provincial judicature, when established, and the sovereign
power of which they are the subjects.  There must thus be a division of the functions of supreme power; and in this, like every
other instance of divided sovereignty, the relations of the provincial to the parent government will often be extremely delicate. But
the status of the people is determined from the first.  They remain
the subjects of the parent Government, and being governed by the
same laws, they are bound by the same obligations and invested




COLONIAL CONSTITUTIONS.                  405
with the same rights as before their emigration.  The peculiar difficulty of such colonies is this, that laws by which the obligations
of the subjects are defined will seem to be immediately in force,
while institutions made for the security of rights, being not yet established in the colony, or at best imperfectly established, will be
insufficient to protect the colonist in their enjoyment; and in every
such case justice will require the spirit of the laws to be regarded
rather than the letter. A discretionary application of laws is
always dangerous. The tendency of governments is always to encroach upon the franchise of the subject; and the tendency in
colonies is always to complete autonomy; so that a conflict is inevitable if the former fail to put a liberal construction on colonial
rights, or if the latter fail duly to recognize colonial obligations.
When so much is left to human wisdom, virtue, and forbearance,
history affords but little reason to expect a happy issue.
2. The second case is when a colony is to.be planted in a conquered or ceded country which already has a code of laws, and
governmental institutions for their execution.  By the law of nations conquest gives to the victorious. power an absolute authority
over his conquered enemies, to whom, therefore, the conqueror's
will becomes the only source of law; but this, " in reason and civil
policy, can mean nothing more than that, in order to put an end to
hostilities, a compact is either expressly or tacitly made between
the conqueror and the conquered, that if they will acknowledge the
victor-for the master, he will treat them for the future as subjects,
and not as enemies." (BLAcKSTONE, Corn. i. 103.) Cession of territory, when no stipulations to the contrary are made, conveys as
absolute a sovereignty as conquest. Therefore, in a conquered or
ceded country that has already laws.of its own, the sovereign has a
right to alter or abolish the existing laws; but till he actually does
change or abolish them, they remain in full force over the inhabitants; and any of his subjects, colonists, or others who may settle
in the conquered or ceded country, fall likewise under their control.
In this case, if a colony be planted, there is little likelihood of conflict with the parent Government. The rights and obligations of
the colonists being only such as it prescribes, immunities and privileges emanating solely from its gift, and it alone giving protection




406               COLONIAL CONSTITUTIONS.
against the natives, who may always be supposed to be inclined to
win their freedom by rebellion-interest and the instinct of selfpreservation equally impel him to sustain the sovereign power. At
all events the government is simple. Despotism, and this under
any form, is despotism, admits no conflicts of authority or jurisdiction, knows no rights but those it chooses to respect, and recognizes nothing in the subject but his obligation of obedience.
3. The distinction between the two cases is clear. In the
former, when a country having no established laws is occupied by
colonists, they bring with them in full vigor all the laws of their
own country, so far as those laws are applicable to colonial circumstances. In the latter, where a country having legal institutions
falls by conquest, all existing laws remain till they are changed or
abrogated by the conqueror; and colonists or settlers in the subjugated country are equally with the natives under the supreme will
of the subjugating power. Now, in the country occupied by the
American colonies there were no laws for the government of civilized society, because among the Indian aborigines no civilized society existed. From the foundation, therefore, of the colonies, the
laws of England were in force in every one of them, and with those
laws the rights as well as duties of the subjects of the English
crown.
The qolonists of North America never lost sight of this. All
the anomalies and inconveniences of an ill-regulated colonial system
were powerless to alienate them from the English crown. It was
their pride that they were Englishmen; their ancient bonds and
memories were all in England; but above all things else, their
rights and liberties were of English growth, and it was as Englishmen they claimed to hold them. Some cause of dissatisfaction
they might have and did have with the Government at home; but
in this they suffered only with their fellow subjects from the crown
during the troubled period of the Stuarts. It was not till later
that their fellow subjects joined the crown in the oppression of the
colonies by acts of Parliament, and during the period of trial the
Americans could only look with sympathy upon the struggle between
royalty and commons' rights, glorying in the triumph of the people,




COLONIAL CONSTITUTIONS.               407
or lamenting the fanaticism which sometimes turned their triumph
into cause for grief.
With these preliminary observations we may now proceed to
give a sketch of the constitutional history of the thirteen colonies.
As to their interior polity, the colonies were properly of three
sorts:
1. Provincial establishments, in which the governor and council
were appointed by the crown. In these the constitutions depended
on the respective commissions and instructions issued by the crown
to the governors; under the authority of which provincial assemblies, elected by the people, were constituted with the power of
making laws and ordinances not repugnant to the laws of England.
Such were the governments of VIRGINIA, NEW HAMPSHIRE, NEW YORK,
GEORGIA, NEW JERSEY after 1702, and the CAROLINAS after 1728.
2. Proprietary governments, granted out to individuals, after the
manner of feudatory principalities.  In these the proprietary was
practically governor of the province, the assembly being chosen by
the people. Such were the governments of MARYLAND and PENNSYLVANIA, and at first of NEW JERSEY and the CAROLINAS.
3. Charter governments, in which the governor, council, and
assembly were chosen by the people. These had the power of local
legislation, and such other rights and authorities as were specially
given in their charters of incorporation.  To this class belonged
the governments of the PLYMOUTH COLONY, CONNECTICUT, RHODE
ISLAND, and originally of MASSACHUSETTS.
4. In addition to these, a mixed form of government was adopted
in MASSACHUSETTS, in which the governor only was appointed by
the crown, the council and assembly being both elected by the
people.
VIRGINIA.-The first permanent settlement made in America,
under the auspices of England, was under a charter to Sir Thomas
Gates and his associates, by James I., in 1606, which granted to
them the territories in America then commonly called Virginia.
The associates were divided into two companies. By degrees, the
name of Virginia was confined to the first or south colony. The




408               COLONIAL CONSTITUTIONS.
second assumed the name of the Plymouth Company, and New
England was founded under their auspices.
By the tenor of their charter all persons, being English subjects
and inhabiting in the colonies, and their children born therein, were
declared to have and possess all liberties, franchises, and immunities, within any other of the dominions of the crown, to all intents
and purposes, as if they had been abiding and born within the realm
of England, or any other dominions of the crown. The patentees
were to hold the lands, &c., in the colony, of the king, his heirs and
successors, as of the manor of East Greenwich in the county of
Kent, in free and common soccage only, and not in capite; and were
authorized to grant the same to the inhabitants of the colonies in
such manner and form, and for such estates, as the council of the
colony should direct.
Each colony was to be governed by a local council, appointed
and removable at the pleasure of the crown, according to the royal
instructions and ordinances from time to time promulgated. These
councils were to be under the superior management and direction
of another council sitting in England. A power was given to expel
all intruders, and to lay a limited duty upon all persons trafficking
with the colony; but a prohibition was imposed upon all the colonists against trafficking with foreign countries under the pretence
of a trade from the mother country to the colonies.
The settlements in Virginia were earliest in point of date, and
were fast advancing under a policy which subdivided the property
among the settlers, instead of retaining it in common, and thus
give vigor to private enterprise. As the colony increased, the spirit
of its members assumed more and more the tone of independence;
and they grew restless and impatient for the privileges enjoyed
under the government of their native country.  To quiet this uneasiness, Sir George Yeardley, then the governor of the colony, in
1619 called a general assembly, composed of representatives from
the various plantations in the colony, and permitted them to assume and exercise the high functions of legislation. Thus was
formed and established the first representative legislature that ever
sat in America. And this example of a domestic parliament, to
regulate all the internal concerns of the country, was never lost




COLONIAL CONSTITUTIONS.                 409
sight of, but was ever afterwards cherished, throughout America,
as the dearest birthright of freemen.  So acceptable was it to the
people, and so indispensable to the real prosperity of the colony,
that the council in England were compelled, in 1621, to issue an
ordinance, which gave it a complete and permanent sanction. In
imitation of the constitution of the British Parliament, the legislative power was lodged-partly in the governor, who held the place
of the sovereign; partly in a council of state named by the company;
and partly in an assembly composed of representatives freely
chosen by the people. Each branch of the legislature might decide by a majority of voices, and a negative was reserved to the
governor. But no law was to be in force, though approved by all
three of the branches of the legislature, until it was ratified by a
general court of the company, and returned under its seal to the
colony. The ordinance further required the general assembly, as
also the council of state, "to imitate and follow the policy of the
form of government, laws, customs, and manner of trial and other
administrations of justice, used in the realm of England, as near
as may be."
Charles I. chose to regard and govern his American possessions
as conquered territories. He declared the colony to be a part of
the empire annexed to the crown, and immediately subordinate to
its jurisdiction. During the greater part of his reign, Virginia
knew no other law than the will of the sovereign or his delegated
agents; and statutes were passed, and taxes imposed, without the
slightest effort to convene a colonial assembly. It was not until
the murmurs and complaints, which such a course of conduct was
calculated to produce, had betrayed the inhabitants into acts of
open resistance to the governor, and into a firm demand of redress
from the crown against his oppressions, that the king was brought
to more considerate measures.  He did not at once yield to their
discontents; but pressed as he was by severe embarrassments at
home, he was content to adopt a policy which would conciliate the
colony, and remove some of its just complaints.  He accordingly,
soon afterwards, appointed Sir William Berkeley governor, with
powers and instructions which breathed a far more benign spirit.
He was authorized to proclaim that, in all its concerns, civil as
18




410                COLONIAL CONSTITUTIONS.
well as ecclesiastical, the colony should be governed according to the
laws of England.  He was directed to issue writs for electing representatives of the people, who, with the governor and council,
should form a general assembly clothed with supreme legislative
authority; and to establish courts of justice, whose proceedings
should be guided by the forms of the parent country.  The rights
of Englishmen were thus secured to the colonists.
The laws of Virginia, during its colonial state, do not exhibit
as many marked deviations, in the general structure of its institutions and civil polity, from those of the parent country, as those in
the northern colonies. The common law was recognized as the
general basis of its jurisprudence; and the legislature, with some
appearance of boast, stated, soon after the restoration of Charles
II., that they had " endeavored, in all things, as near as the capacity and constitution of this country would admit, to adhere to
those excellent and often refined laws of England, to which we
profess and acknowledge all due obedience and reverence." The
prevalence of the common law was also expressly provided for in
all the charters successively granted, as well as by the royal declaration when the colony was annexed as a dependency to the crown.
Indeed, there is no reason to suppose that the common law was not,
in its leading features, very acceptable to the colonists; and in its
general policy the colony closely followed in the steps of the
mother country. The trial by jury, although a privilege resulting
from their general rights, was guarded by special legislation. There
was also an early declaration that no taxes could be levied by the
governor without the consent of the general assembly; and when
raised, they were to be applied according to the appointment of the
legislature. The burgesses also, during their attendance upon the
assembly, were free from arrest. In respect to domestic trade, a
general freedom was guaranteed to all the, inhabitants to buy and
sell to the greatest advantage, and all engrossing was prohibited.
The culture of tobacco seems to have been a constant object of
solicitude; and it was encouraged by a long succession of acts sufficiently evincing the public feeling, and the vast importance of it
to the prosperity of the colony. We learn from Sir William Berkeley's answers to the lord commissioners, in 1671, that the population




COLONIAL CONSTITUTIONS.                411
of the colony was at that time about 40,000; that the restrictions of
the navigation act, cutting off all trade with foreign count, ies, were
very injurious to them, as they were obedient to the laws. And
"this (says he) is the cause why no small or great vessels are built
here; for we are most obedient to all laws, whilst the New England
men break through, and men trade to any place that their interest
leads them." This language is sufficiently significant of the restlessness of New England under these restraints upon its commerce.
In 1680 a remarkable change was made in the colonial jurisprudence, by taking all judicial power from the assembly, and allowing
an appeal from the judgments of the General Court to the king in
council.
PLYMOUTH COLONIES.-Beforc their landing, on the 11th of November, 1620, the Plymouth colonists drew up and signed an
original compact, in which, after acknowledging themselves subjects
of the crown of England, they proceed to declare: " Having undertaken, for the glory of God, and the advancement of the Christian
faith, and the honor of our king and country, a voyage to plant the
first colony in the northern parts of Virginia, we do, by these presents, solemnly and mutually, in the presence of God and of one
another, covenant and combine ourselves together into a civil body
politic, for our better ordering and preservation, and furtherance
of the ends aforesaid. And by virtue hereof do enact, constitute,
and frame, such just and equal laws, ordinances, acts, constitutions,
and officers, from time to time, as shall be thought most meet and
convenient for the general good of the colony; unto which we
promise all due submission and obedience." This compact (signed
by forty-one persons) is, in its very essence, a pure democracy; and
in pursuance of it, the colonists proceeded soon afterwards to organize the colonial government, under the name of the Colony of New
Plymouth, to appoint a governor and other officers, and to enact
laws. The governor was chosen annually by the freemen, and had
at first one assistant to aid him in the discharge of his trust. Four
others were soon afterwards added, and finally the number was increased to seven. The supreme legislative power resided in, and
was exercised by, the whole body of the male inhabitants-every




412                COLONIAL CONSTITUTIONS.
freeman, who was a member of the church, being admitted to vote
in all public affairs. The number of settlements having increased,
and being at a considerable distance from each other, a house of
representatives was established in 1639, the members of which, as
well as all other officers, were annually chosen. They adopted the
common law of England as the general basis of their jurisprudence
-varying it, however, from time to time, by municipal regulations
better adapted to their situation, or conforming more exactly to
their stern notions of the absolute authority and universal obligation of the Mosaic institutions.
The Plymouth colonists acted, at first, altogether under the
voluntary compact and association already mentioned. But they
daily felt embarrassments from the want of some general authority,
derived directly or indirectly from the crown, which should recognize their settlement and confirm their legislation. After several
ineffectual attempts made for this purpose, they at length succeeded
in obtaining, in January, 1629, a patent from the council established
at Plymouth, in England, under the charter of King James, of
1620. This patent, besides a grant of the territory, upon the terms
and tenure of the original patent of 1620, included an authority to
the patentee (William Bradford) and his associates " to incorporate,
by some usual or fit name and title, him or themselves, or the people there inhabiting under him or them, and their successors; from
time to time to make orders, ordinances, and constitutions, as well
for the better government of their affairs here, and the receiving or
admitting any into their society, as also for the better government
of his or their people, or his or their people at sea, in going thither
or returning from thence; and the same to put or cause to be put
in execution, by such officers and ministers as he or they shall authorize and depute; provided, that the said laws and orders be not
repugnant to the laws of England, or the frame of government by
the said president and council [of Plymouth Company] hereafter
to be established."
The charter of 1629 furnished them, however, with the color of
delegated sovereignty, of which they did not fail to avail themselves.
They assumed under it the exercise of the most plenary executive,
legislative, and judicial powers, with but a lomn-entary scruple as to




COLONIAL CONSTITUTIONS.                 413
their right to inflict capital punishments. They were not disturbed
in the free exercise of these powers until after the restoration of
Charles IT. Their authority under their charter was then questioned; and several unsuccessful attempts were made to procure a
confirmationl from the crown. They continued to cling to it, until,
in 1684, their charter was overturned. An arbitrary government
was then established over them, in common with the other New
England colonies, and they were finally incorporated into a province,
with Massachusetts, under the charter granted to the latter by
William and Marvy, in 1691.
After providing for the manner of choosing their governor and
legislature, as above stated, their first attention seems to have been
directed to the establishment of " free liberties of the free-born
people of England." It was therefore declared, almost in the language of Magna Charta, that justice should be impartially administered unto all, not sold or denied; that no person should suffer
" in respect to life, limb, liberty, good name, or estate, but by virtue
or equity of some express law of the General Court, or the good
and equitable laws of our nation suitable for us, in matters which
are of a civil nature (as by the court here hath been accustomed),
wherein we have no particular law of our own; " and none should
suffer without being brought to answer by due course and process
of law; that, in criminal and civil cases, there should be a trial by
jury at all events upon a final trial on appeal, with the right to
challenge for just cause; and, in capital cases, a peremptory right
to challenge twenty jurors, as in England; and that no party should
be cast or condemned, unless upon the testimony of two sufficient
witnesses, or other sufficient evidence, or circumstances, unless
otherwise specially provided by law.  All processes were directed
to be in the king's name. All trials in respect to land were to be in
the county where it lay; and all personal actions where one of the
parties lived; and lands and goods were liable to attachment to
answer the judgment rendered in any action. All lands were to
descend according to the free tenure of lands of East Greenwich,
in the county of Kent; and all entailed lands according to the law
of England.




414               COLONIAL CONSTITUTIONS.
MASSACHUSETTS.-Application was made for a charter to King
Charles, who, accordingly, in March, 1628, granted to the grantees
and their associates the most ample powers of government. The
charter confirmed to them  the territory already granted by the
council established at Plymouth, to be holden of the crown, as of
the royal manor of East Greenwich, " in free and common soccage,
and not in capite, nor by knight's service," yielding to the crown
one fifth part of all ore of gold and silver, &c. It also created the
associates a body politic by the name of " The Governor and Company of the Massachusetts Bay in New England," with the usual
powers of corporations. It provided that the government should
be administered by a governor, a deputy-governor, and eighteen
assistants, from time to time elected out of the freemen of the
company, which officers should have the care of the general business
and affairs of lands and plantations, and the government of the
people there; and it appointed the first governor, deputy-governor,
and assistants, by name.  It further provided that a court or quorum, for the transaction of business, should consist of the governor
or the deputy-governor, and seven or more assistants, which should
assemble as often as once a month for that purpose, and also that
four great general assemblies of the company should be held in
every year.  In these great and general assemblies (which were
composed of the governor, deputy, assistants, and freemen present),
freemen were to be admitted free of the company, officers were to
be elected, and laws and ordinances for the good and welfare of the
colony made; " so as such laws and ordinances be not contrary or
repugnant to the laws and statutes of this our realm of England."
At one of those great and general assemblies held in Easter Term,
the governor, deputy, and assistants, and other officers, were to be
annually chosen by the company present.  The company were further authorized to transport any subjects, or strangers willing to
become subjects, of the crown, to the colony, and to carry on trade
to and from it, without custom or subsidy, for seven years, and were
to be free of all taxation of imports or exports to and from the
English dominion for the space of twenty-one years, with the exception of a five per cent. duty. The charter further provided that all
subjects of the crown, who should become inhabitants, and their




COLONIAL CONSTITUTIONS.                 415
children born there, or on the seas going or returning, should enjoy
all liberties and immunities of free and natural subjects, as if they,
and every of them, were born within the realm of England. Full
legislative authority was also given, subject to the restriction of
not being contrary to the laws of England.
For three or four years after the removal of the charter, the
governor and assistants wvre chosen, and all the business of the
government was transacted, by the freemen assembled at large in a
General Court. But the members having increased, an alteration
took place, and in 1634, the towns sent representatives to the
General Court. They drew up a general declaration, that the
General Court alone had power to make and establish laws, and to
elect officers; to raise moneys and taxes, and to sell lands; and
that, therefore, every town might choose persons, as representatives,
not exceeding two, who should have the full power and voices of all
the freemen, except in the choice of officers and magistrates, wherein
every freeman was to give his own vote. The system thus proposed
was immediately established by common consent, although it is nowhere provided for in the charter. And thus was formed the
second house of representatives (the first being in Virginia) in any
of the colonies. At first, the whole of the magistrates (or assistants) and the representatives sat together, and as one body, in enacting all laws and orders. But at length, in 1644, they separated
into two distinct and independent bodies, each of which possessed
a negative upon the acts of the other. This course of proceeding
continued until the final dissolution of the charter.
The General Court, in their address to Parliament in 1646, in
answer to the remonstrance of certain malcontents, used the following language: "For our government itself, it is framed according to
our own charter, and the fundamental and common laws of England,
and carried on according to the same (taking the words of eternal
truth and righteousness along with them, as that rule by which all
kingdoms and jurisdictions must render an account of every act
and administration in the last day), with as bare an allowance for
the disproportion between such an ancient, populous, wealthy kingdom, and so poor an infant, thin colony, as common reason can
afford." And they then proceeded to show the truth of their state



416               COLONIAL CONSTITUTIONS.
ment by drawing a parallel, setting down in one column the fundamental and common laws and customs of England, beginning with
Magna Charta, and, in a corresponding column, their own fundamental laws and customs.
After the fall of the first colonial charter, in 1684, Massachusetts remained for some years in a very disturbed state, under the
arbitrary power of the crown. At length a new charter was, in
1691, granted to the colony by Williaml and Mary; and it henceforth became known as a province, and continued to act under this
last charter until after the Revolution. The charter comprehended
within its territorial limits all the old colony of the Massachusetts
Bay, the colony of New Plymouth, the province of Main.e, the territory called Acadia or Nova Scotia, and all the lands lying between
Nova Scotia and Maine; and incorporated the whole into one province by the name of the Province of the Massachusetts Bay in
New England, to be holden as of the royal manor of East Greenwich, in the county of Kent. It confirmed all prior grants made
of lands to all persons, corporations, colleges, towns, villages,
and schools. It reserved to the crown the appointment of the
governor, and lieutenant-governor, and secretary of the province,
and all the officers of the Court of Admiralty.  It provided for
the appointment, annually, of twenty-eight counsellors, who were
to be chosen by the General Court, and nominated the first board.
The governor and counsellors were to hold a council for the ordering and directing of the affairs of the province. The governor was
invested with the right of nominating, and, with the advice of the
council, of appointing all military officers, and all sheriffs, provosts,
marshals, and justices of the peace, and other officers of courts of
justice. He had also the power of calling the General Court, and
of adjourning, proroguing, and dissolving it. He had also a negative upon all laws passed by the General Court.  The General
Court was to assemble annually on the last Wednesday of May;
and was to consist of the governor and council for the time being,
and of such representatives, being freeholders, as should be annually
elected by the freeholders of each town who possessed a freehold of
forty shillings annual value, or other estate to the value of forty
pounds. Each town was entitled to two representatives; but the




COLONIAL CONSTITUTIONS.                 417
General Court was, from time to time, to decide on the number
which each town should send. The General Court was invested
with full authority to erect courts, to levy taxes, and make all
wholesome laws and ordinances, "so as the same be not repugnant
or contrary to the laws of England; " and to settle annually all civil
officers whose appointment was not otherwise provided for. All
laws, however, were to be sent to England for approbation or disallowance; and if disallowed, and so signified under the sign manual
and signet, within three years, the same thenceforth to cease and
become void; otherwise to continue in force according to the terms
of their original enactment. The governor was also made commander-in-chief of the militia, with the usual martial powers; but
was not to exercise martial law without the advice of the council.
In case of his death, removal, or absence, his authority was to
devolve on the lieutenant-governor, or, if his office was vacant, then
on the council. With a view also to advance the growth of the
province by encouraging new settlements, it was expressly provided
that there should be " a liberty of conscience allowed in the worship
of God to all Christians, except Papists; " and that all subjects inhabiting in the province, and their children born there, or on the
seas going or returning, should have all the liberties and immunities
of free and natural subjects, as if they were born within the realm
of England. And in all cases an appeal was allowed from the
judgments of any courts of the province to the king, in the privy
council, in England, where the matter in difference exceeded three
hundred pounds sterling. And, finally, there was a reservation of
the whole admiralty jurisdiction to the crown; and of a right to
all subjects to fish on the coasts.
After the grant of the provincial charter, in 1691, the legislation
of the colony took a wider scope, and became more liberal, as well
as more exact.  At the very first session an act passed, declaring
the general rights and liberties of the people, and embracing the
principal provisions of Magna Charta on this subject. Among
other things, it was declared that no tax could be levied but by the
General Court; that the trial by jury should be secured to all the
inhabitants; and that all lands shall be free from escheats and forfeitures, except in cases of high treason.  A habeas corpus act was
18*




418              COLONIAL CONSTITUTIONS.
also passed at the same session, but it seems to have been disallowed
by the crown; and Chalmers asserts that there is no circumstance,
in the history of colonial jurisprudence, better established than the
fact that the habeas corpus act was not extended to the plantations
until the reign of Queen Anne.
NEW HAMPSHIRE.-In November, 1629, Captain John Mason
obtained a grant, from the council of Plymouth, of a territory
which was afterwards called New Hampshire. The land granted
was expressly subjected to the conditions and limitations in the
original patent. A further grant was made to Mason by the council of Plymouth about the time of the surrender of their charter
(22d April, 1635), covering much of the land in the prior grant,
and giving to the whole the name of New Hampshire.
In the exposition of its own charter, Massachusetts contended
that its limits included the whole territory of New Hampshire;
and, being at that time comparatively strong and active, she succeeded in establishing her jurisdiction over it, and maintained it
with unabated vigilance forty years. The controversy was finally
brought before the king in council; and in 1679, it was solemnly
adjudged against the claim of Massachusetts.  And it being admitted that Mason, under his grant, had no right to exercise any
powers of government, a commission was, in the same year, issued
by the crown for the government of New Hampshire.
New Hampshire continued down to the period of the Revolution
to be governed by commission as a royal province, and enjoyed the
privilege of enacting her own laws through the instrumentality of
a General Assembly, in the manner provided by the first commission.
The laws of New Hampshire, during its provincial state, partook very much the character of those of the neighboring province
of Massachusetts.
MAINE.-In April, 1639, Sir Ferdinando Gorges obtained from
the crown a confirmatory grant of all the land from Piscataqua to
Sagadahock and the Kennebeck river, and from the coast into the
northern interior one hundred and twenty miles; and it was styled




COLONIAL CONSTITUTIONS.                419
"The Province of Maine."  Of this province he was made lord
palatine, with all the powers, jurisdiction, and royalties belonging
to the bishop of the county palatine of Durham; and the lands
were to be holden as of the manor of East Greenwich. The charter contains a reservation of faith and allegiance to the crown, as
having the supreme dominion. It also authorizes the palatine, with
the assent of the greater part of the freeholders of the province, to
make laws, not repugnant or contrary, but as near as conveniently
may be, to the laws of England, for the public good of the province;
and to erect courts of judicature for the determination of all civil
and criminal causes, with an appeal to the palatine. But all the
powers of government so granted were to be subordinate to the
"power and regiment " of the lords commissioners for foreign plantations for the time being.
A controversy between Massachusetts and the palatine, as to
jurisdiction over the province, was brought before the privy council
at the same time with that of Mason respecting New Hampshire,
and the claim of Massachusetts was adjudged void. Before a final
adjudication was had, Massachusetts had the prudence and sagacity,
in 1677, to purchase the title of Gorges for a trifling sumn; and
thus, to the great disappointment of the crown (then in treaty for
the same object), succeeded to it, and held it, and governed it as a
provincial dependency until the fall of its own charter; and it
afterwards, as we have seen, was incorporated with Massachusetts,
in the provincial charter of 1691.
CONNECTICUT. —The colony of New Haven was settled by emigrants immediately from England, without any title derived from the
immediate patentees. They began their settlement in 1638, purchasing their lands of the natives; and entered into a solemn compact of government.  By it no person was admitted to any office,
or to have any voice at any election, unless he was a member of one
of the churches allowed in the dominion. There was an annual
election of the governor, the deputy, magistrates, and other officers,
by the freemen. The General Court consisted of the governor,
deputy, magistrates, and two deputies from each plantation.
Other courts were provided for; and their laws and proceedings




420               COLONIAL CONSTITUTIONS.
varied in very few circumstances from Massachusetts, except that
they had no jury, either in civil or criminal cases.
Soon after the restoration of Charles II., the colony solicited,
and in April, 1662, obtained, from that monarch, a charter of government and territory. The charter included within its limits the
whole colony of New Haven; and as this was done without the
consent of the latter, resistance was made to the incorporation, until
1665, when both were indissolubly united, and have ever since remained under one general government.
In 1685, a quo warranto was issued by King James against the
colony, for the repeal of the charter. No judgment appears to
have been rendered upon it; but the colony offered its submission
to the will of the crown; and Sir Edmund Andros, in 1687, went
to Hartford, and, in the name of the crown, declared the government dissolved. They did not, however, surrender the charter, but
secreted it in an oak, which is still venerated; and immediately
after the revolution of 1688, they resumed the exercise of all its
powers.  The charter continued to be maintained as a fundamental law of the State until the year 1818, when a new constitution of government was framed and adopted by the people. The
laws of Connecticut were, in many respects, similar to those of
Massachusetts.
RiloDE ISLAND. —Roger Williams succeeded in obtaining, from
the Earl of Warwick, in 1643, a charter of incorporation of Providence Plantations; and also, in 1644, a charter from the two houses
of Parliament (Charles I. being then driven from his capital) for
the incorporation of the towns of Providence, Newport, and Portsmouth, for the absolute government of themselves, but according
to the laws of England.
Under this charter an assembly was convened in 1647, consisting
of the collective freemen of the various plantations. The legislative power was vested in a court of commissioners of six persons,
chosen by each of the four towns then in existence. The whole
executive power seems to have been vested in a president and four
assistants, who were ehosen from the freemen, and formed the
supreme court for the administration of justice.




COLONIAL CONSTITUTIONS.                421
They continued to act under this government until the restoration of Charles II. That event seems to have given great satisfaction to these Plantations. They immediately proclaimed the king,
and sent an agent to England; and in July, 1663, after some opposition, they succeeded in obtaining a charter from the crown.
That charter incorporated the inhabitants, by the name of " the
Governor and Company of the English Colony of Rhode Island and
Providence Plantations, in New England, in America," conferring
on them the usual powers of corporations.
Rhode Island enjoys the honor of having been, if not the first,
at least one of the earliest, of the colonies, and indeed of modern
states, in which the liberty of conscience and freedom of worship
were boldly proclaimed among its fundamental laws.
In December, 1686, Sir Edmund Andros, agreeably to his
orders, dissolved their government, and assumed the administration
of the colony. The revolution of 1688 put an end to his power;
and the colony immediately afterwards resumed its charter, and,
though not without some interruptions, continued to maintain and
exercise its powers down to the period of the American Revolution.
After the Revolution it continued to act under the same charter as
a fundamental law, being the only State in the Union which did not
immediately form a new constitution of government.
MARYLAND.-The province of Maryland was included originally
in the patent of the Southern or Virginia Company; and, upon the
dissolution of that company, it reverted to the crown   King
Charles I., on the 20th of June, 1632, granted it by patent to
Cecilius Calvert, Lord Baltimore. By the charter, the king erected
it into a province, and gave it the name of Maryland, in honor of
his queen, Henrietta Maria, the daughter of Henry IV. of Franee,
to be held of the crown of England, he, yearly, forever, rendering
two Indian arrows. The first emigration made under the auspices
of Lord Baltimore was in 1632, and consisted of about 200
gentlemen of considerable fortune and rank, and their adherents,
being chiefly Roman Catholics. " He laid the foundation of this
province (says Chalmers) upon the broad basis of security to property and of freedom of religion, granting, in absolute fee, fifty




422               COLONIAL CONSTITUTIONS.
acres of land to every emigrant; establishing Christianity agreeably to the old common law, of which it is a part, without allowing
preeminence to any particular sect. The wisdom of his choice soon
converted a dreary wilderness into a prosperous colony."
The first legislative assembly of Maryland, held by the freemen
at large, was in 1634-1635; but little of their proceedings is
known. No acts appear to have been adopted until 1638-1639,
when provision was made for a representative House of Assembly,
chosen by the freemen; and the laws passed by the Assembly, and
approved by the proprietary, or his lieutenant, were to be of full
force.
At the same session, an act, which may be considered as in some
sort a Magna Charta, was passed, declaring, among other things,
that " Holy Church, within this province, shall have all her rights
and liberties, and that the inhabitants shall have all their rights
and liberties according to the great charter of England." Maryland, like the other colonies, was early alive to the importance of
possessing the sole power of internal taxation; and accordingly, in
1650, it was declared that no taxes should be levied without the
consent of the General Assembly.
Upon the revolution of 1688, the government of Maryland was
seized into the hands of the crown, and was not again restored to
the proprietary until 1716. From that period no interruption occurred until the American Revolution.
NEW YORK.-Charles II., in March, 1664, granted a patent to
his brother, the Duke of York and Albany, by which he conveyed
to him the region extending from the western bank of the Connecticut to the eastern shore of the Delaware, together with Long Island,
and conferred on him the powers of government, civil and military.
A part of this tract was afterwards conveyed by the duke, by
deed of lease and release, in June of the same year, to Lord Berkeley and Sir George Carteret. The territory then claimed by the
Dutch as the New Netherlands was divided into the colonies of
New York and New Jersey. In September, 1664, the Dutch colony
was surprised by a British armament, which arrived on the coast,
and was compelled to surrender to its authority.




COLONIAL CONSTITUTIONS.                423
No general assembly was called for several years; and the people having become clamorous for the privileges enjoyed by other
colonists, the governor was, in 1682, authorized to call an assembly,
which was empowered to make laws for the general regulation of
the State, which, however, were of no force without the ratification
of the proprietary. Upon the revolution of 1688, the people of
New York immediately took side in favor of the Prince of Orange.
From this era they were deemed entitled to all the privileges of
British subjects, inhabiting a dependent province of the state.
As soon as the first royal governor arrived, in 1691, an assembly was called, which passed a number of important acts. Among
others was an act virtually declaring their right of representation,
and their right to enjoy the liberties and privileges of Englishmen
by Magna Charta. It enacted that the supreme legislative power
should forever reside in a governor and council appointed by the
crown, and the people by their representatives (chosen in the manner pointed out in the act) convened in General Assembly; that,
in all criminal cases, there should be a trial by a jury; that estates
of femes covert should be conveyed only by deed upon privy examination; that wills in writing, attested by three or more credible
witnesses, should be sufficient to pass lands; that there should be
no fines upon alienations, or escheats and forfeitures of lands, except in cases of treason; that no person should hold any office,
unless upon his appointment he would take the oaths of supremacy,
and the test prescribed by the act of Parliament; that no tax or
talliage should be levied but by the consent of the General Assembly.
Perhaps New York was more close in the adoption of the policy
and legislation of the parent country, before the Revolution, than
any other colony.
NEW JERSEY. —New Jersey, as we have already seen, was part
of the territory granted to the Duke of York, and was by him
granted, in June, 1664, to Lord Berkeley and Sir George Carteret,
with all the rights, royalties, and powers of government which he
himself possessed. The proprietors, for the better settlement of




424                COLONIAL CONSTITUTIONS.
the territory, agreed, in February, 1664-1665, upon a constitution
or concession of government.
This constitution continued until the province was divided, in
1676, between the proprietors. By that division East New Jersey
was assigned to Carteret; and West New Jersey to William Penn
and others, who had purchased of Lord Berkeley. Carteret then
explained and confirmed the former concessions for the territory
thus exclusively belonging to himself. The proprietors also of
West Jersey drew up another set of concessions for the settlers
within that territory. They contain very ample privileges to the
people.
Whether these concessions became the general law of the province seems involved in some obscurity. There were many difficulties and contests for jurisdiction between the governors of the Duke
of York and the proprietors of the Jerseys; and these were not settled until after the duke, in 1680, finally surrendered all right to
both by letters patent granted to the respective proprietors.  In
1681, the governor of the proprietors of West Jersey, with the
consent of the General Assembly, made a frame of government,
embracing some of the fundamentals in the former concessions.
There was to be a governor and council, and a General Assembly
of representatives of the people. The General Assembly had the
power to make laws, to levy taxes, and to appoint officers. Liberty
of conscience was allowed, and no persons rendered incapable of
office in respect of their faith and worship.  West Jersey continued
to be governed in this manner until the surrender of the proprietary government, in 1702.
Carteret died in 1679, and, being sole proprietor of East Jersey, by his will he ordered it to be sold for payment of his debts;
and it was accordingly sold to William Penn and eleven others, who
were called the Twelve Proprietors. They afterwards took twelve
more into the proprietaryship; and to the twenty-four thus formed,
the Duke of York, in March, 1682, made his third and last grant
of East Jersey. Very serious dissensions soon arose between the
two provinces themselves, as well as between them and New York,
which threatened the most serious calamities.  A quo warranto was
ordered by the crown, in 1686, to be issued against both provinces.




COLONIAL CONSTITUTIONS.                425
East Jersey immediately offered to be annexed to West Jersey,
and to submit to a governor appointed by the crown.  Soon afterwards the crown ordered the Jerseys to be annexed to New England,
and the proprietors of East Jersey made a formal surrender of its
patent, praying only for a new grant, securing their right of soil.
Before this request could be granted, the revolution of 1688 took
place, and they passed under the allegiance of a new sovereign.
From this period, both of these provinces were in a state of
great confusion and distraction; and remained so until the proprietors of both made a formal surrender of all their powers of government, but not of their lands, to Queen Anne, in April, 1702.
The queen immediately reunited both provinces into one province,
and by commission appointed a governor over them.
PENNSYLvANIA.- Pennsylvania was originally settled by detachments of planters under various authorities, Dutch, Swedes, and
others, which at different times occupied portions of land on South
or Delaware river.  The ascendency was finally obtained over these
settlements by the governors of New York, acting under the charter of 1664, to the Duke of York.
It continued in a feeble state until William Penn, in 1681, obtained a patent from Charles II., by which he became the proprietary of an ample territory called Pennsylvania, of which the charter
constituted Penn the true and absolute proprietary. It authorized
him, and his heirs and successors, to make all laws for raising
money and other purposes, with the assent of the freemen of the
country, or their deputies assembled for the purpose.  But
"' the same laws were to be consonant to reason, and not repugnant or contrary, but, as near as conveniently may be, agreeable
to raw, and statutes and rights, of this our kingdom of England."
The laws for the descent and enjoyment of lands, and succession to
goods, and of felonies, were to be according to the course in England, until altered by the Assembly. All laws were to be sent to
England within five years after the making of them, and, if disapproved of by the crown within six months, to become null and void.
It also authorized the proprietary to appoint judges and other offi.
cers; to pardon and reprieve criminals; to establish courts of jus



426              COLON)IAL CONSTITUTIONS.
tice, with a right to appeal to the crown from all judgments; to
create cities and other corporations; to erect ports, and manors,
and courts baron in such manors. Liberty was allowed to subjects
to transport themselves and their goods to the province; and to
import the products of the province into England; and to export
them from thence within one year, the inhabitants observing the
acts of navigation, and all other laws in this behalf made. It was
further stipulated that the crown should levy no tax, custom, or
imposition, upon the inhabitants, of their goods, unless by the consent of the proprietary or Assembly, " or by act of Parliament in
England."
A new frame of government was, with the consent of the General Assembly, established in 1683. In 1692, Penn was deprived
of the government of Pennsylvania by William and Mary; but it
was again restored to him in the succeeding year. A third frame
of government was established in 1696. This again was surrendered, and a new, final charter of government was, in October, 1701,
with the consent of the General Assembly, established, under which
the province continued to be governed down to the period of the
American Revolution.
DELAWARE.-After Penn had become proprietary of Pennsylvania, he purchased of the Duke of York, in 1682, all his right
and interest in the territory afterwards called the Three Lower
Counties of Delaware, and the three counties took the names of
New Castle, Kent, and Sussex. At this time they were inhabited
principally by Dutch and Swedes, and seem to have constituted an
appendage to the government of New York.
In the same year, with the consent of the people, an act of
union with the province of Pennsylvania was passed, and an act of
settlement of the frame of government in a General Assembly,
composed of deputies from the counties of Delaware and Pennsylvania. By this act the three counties were, under the name of the
Territories, annexed to the province, and were to be represented in
the General Assembly, governed by the same laws, and to enjoy
the same privileges, as the inhabitants of Pennsylvania. Difficulties
soon afterwards arose between the deputies of the province and those




COLONIAL CONSTITUTIONS.                427
of the Territories; and, after various subordinate arrangements, a
final separation took place between them, with the consent of the
proprietary, in 1703. From that period down to the American
Revolution, the Territories were governed by a separate legislature
of their own, pursuant to the liberty reserved to them by a clause
in the original charter or frame of government.
NORTH AND SOUTH CAROLINA —In March, 1662 (April, 1663),
Charles II. made a grant, to Lord Clarendon and others, of territory lying on the Atlantic Ocean, and erected it into a province,
by the name of Carolina, to be holden as the manor of East Greenwich, in Kent, in free and common soccage, and not in capite, or by
knight service, subject immediately to the crown, as a dependency,
forever.
The grantees were created absolute lords proprietaries, saving
the faith, allegiance, and supreme dominion of the crown, and invested with as ample rights and jurisdictions as the Bishop of Durham possessed in his palatine diocese. The charter seems to have
been copied from that of Maryland, and resembles it in many of
its provisions.
It further required that all laws should " be consonant to reason,
and, as near as may be conveniently, agreeable to the laws and customs of this our kingdom of England." And it declared that the
inhabitants and their children, born in the province, should be
denizens of England, and entitled to all the privileges and immunities of British-born subjects.
In 1665, the proprietaries obtained from Charles II. a second
charter, with an enlargement of boundaries.
Several detached settlements were made in Carolina, which were
at first placed under distinct temporary governments; one was in
Albemarle, another to the south of Cape Fear. Thus various independent and separate colonies were established, each of which had
its own Assembly, its own customs, and its own laws-a policy
which the proprietaries had afterwards occasion to regret, from its
tendency to enfeeble and distract the provilnce.
In the year 1669, the proprietaries, dissatisfied with the systems
already established within the province, signed a fundamental con



428               COLONIAL CONSTITUTIONS.
stitution for the government thereof, the object of which is declared
to be, " that we may establish a government agreeable to the monarchy, of which Carolina is a part, that we may avoid making too
numerous a democracy." This constitution was drawn up by the
celebrated Jobn Locke.
It provided that the oldest proprietary should be the palatine,
and the next oldest should succeed him. Each of the proprietaries
was to hold a high office. The rules of precedency were most exactly established. Two orders of hereditary nobility were instituted, with suitable estates, which were to descend with the dignity.
The provincial legislature, dignified with the name of parliament,
was to be biennial, and to consist of the proprietaries or their
deputies, of the nobility, and of representatives of the freeholders chosen in districts. They were all to meet in one apartment
(like the ancient Scottish Parliament), and enjoy an equal vote.
No business, however, was to be proposed until it had been debated
in the grand council (which was to consist of the proprietaries and
forty-two counsellors), whose duty it was to prepare bills. No act
was of force longer than until the next biennial meeting of the
Parliament, unless ratified by the palatine and a quorum of the
proprietaries.  All the laws were to become void at the end of a
century, without any formal repeal.  The Church of England
(which was declared to be the only true and orthodox religion) was
alone to be allowed a public maintenance by Parliament; but every
congregation might tax its own members for the support of its own
minister.  Every man of seventeen years of age was to declare
himself of some church or religious profession, and to be recorded
as such; otherwise he was not to have any benefit of the laws.
And no man was to be permitted to be a freeman of Carolina, or have
any estate or habitation, who did not acknowledge a God, and that
God is to be publicly worshipped. In other respects there was a
guaranty of religious freedom. There was to be a public registry
of all deeds and conveyances of lands, and of marriages and births.
Every freeman was to have " absolute power and authority over his
negro slaves, of what opinion or religion soever." No civil or
criminal cause was to be- tried but by a jury of the peers of the
party; but the verdict of a majority was binding.  With a view




COLONIAL CONSTITUTIONS.               429
to prevent unnecessary litigation, it was provided that " it shall be
a base and vile thing to plead for money or reward;" and that,
" since multiplicity of comments, as well as of laws, have great inconveniences, and serve only to obscure and perplex, all manner of
comments and expositions on any part of those fundamental constitutions, or on any part of the common or statute law of Carolina,
are absolutely prohibited."
After a few years' experience of its ill arrangements, and its
mischievous tendency, the proprietaries, upon the application of the
people (in 1693), abrogated the constitution, and restored the
ancient form of government. Thus perished the labors of Mr.
Locke; and thus perished a system, under the administration of
which, it has been remarked, the Carolinas had not known one day
of real enjoyment, and that introduced evils and disorders which
ended only with the dissolution of the proprietary government!
There was, at this period, a space of three hundred miles between the southern and northern settlements of Carolina; and,
though the whole province was owned by the same proprietaries,
the legislation of the two great settlements had been hitherto conducted by separate and distinct assemblies-sometimes under the
same governor, and sometimes under different governors.  The
legislatures continued to remain distinct down to the period when a
final surrender of the proprietary charter was made to the crown,
in 1729. The respective territories were designated by the name
of North Carolina and South Carolina, and the laws of each obtained a like appellation. Cape Fear seems to have been commonly
deemed, in the commissions of the governor, the boundary between
the two colonies.
At a little later period (1732), the province was divided; and
the divisions were distinguished by the names of North Carolina
and South Carolina.
The government conferred on Carolina, when it became a royal
province, consisted of a governor and council appointed by the crown,
and an Assembly chosen by the people; and these three branches
constituted the legislature.  The governor convened, prorogued,
and dissolved the legislature, and had a anegative upon the laws,
and exercised the executive authority. He possessed also the pow



430               COLONIAL COXSTITUTIONS.
ers of the court of chancery, of the admiralty, of supreme ordinary,
and of appointing magistrates and militia officers. All laws were
subject to the royal approbation or dissent, but were in the mean
time in full force.
On examining the statutes of South Carolina, a close adherence
to the general policy of the English laws is apparent. As early as
the year 1712, a large body of the Epnglish statutes were, by express legislation, adopted as part of its own code; and all English
statutes respecting allegiance, all the test and supremacy acts, and
all acts declaring the rights and liberties of the subjects, or securing the same, were also declared to be in force in the province. All
and every part of the common law, not altered by these acts, or inconsistent with the constitutions, customs, and laws of the province,
was also adopted as part of its jurisprudence.
In respect to North Carolina, there was an early declaration of
the legislature (1715), conformably to the charter, that the commonff
law was, and should be, in force in the colony. All statute laws
for maintaining the royal prerogative and succession to the crown;
and all such laws made for the establishment of the church, and
laws made for the indulgence to Protestant dissenters; and all laws
providing for the privileges of the people, and security of trade;
and all laws for the limitation of actions, and for preventing vexatious suits, and for preventing immorality and fraud, and confirming
inheritances and titles of land, were declared to be in force in the
province. The policy thus avowed was not departed from down to
the period of the American Revolution.
GEORGIA.-In the same year in which Carolina was divided
(1732), a project was formed for the settlement of a colony upon
the unoccupied territory between the rivers Savannah and Alatamaha. The object of the projectors was to strengthen the province
of Carolina, to provide a maintenance for the suffering poor of the
mother country, and to open an asylum for the persecuted Protestants in Europe; and, in common with all the other colonies, to
attempt the conversion and civilizati:n of the natives. Upon application, George II. granted a charter to the company (consisting of
Lord Percival and twenty others, among whom was the celebrated




COLONIAL CONSTITTrIONS.                431
Oglethorpe), and incorporated them by the name of the " Trustees
for establishing the Colony of Georgia, in America." The charter
conferred the usual powers of corporations in England, and authorized the trustees to hold any territories, &c., in America, for the
better settling of a colony.
The charter further granted to the corporation seven undivided
parts of all the territories lying in that part of South Carolina
which lies from the northern stream of a river, there called the
Savannah, all along the seacoast, to the southward, unto the southernmost stream of a certain other great river, called the Alatamaha, and westward from the heads of the said rivers respectively
in direct lines to the South Seas, to be held as of the manor of
Hampton Court, in Middlesex, in free and common soccage, and
not in capite. It then erected all the territory into an independent
province, by the name of Georgia. It authorized the trustees, for
-the term of twenty-one years, to make laws for the province, " not
repugnant to the laws and statutes of England," subject to the
approbation or disallowance of the crown, and after such approbation to be valid. The affairs of the corporation were ordinarily to
be managed by the common council. It was further declared that
all persons born in the province should enjoy all the privileges and
immunities of natural-born subjects in Great Britain. Liberty of
conscience was allowed to all inhabitants in the worship of God,
and a free exercise of religion to all persons except Papists.  The
corporation were also authorized, for the term of twenty-one years,
to erect courts of judicature for all civil and criminal causes, and
to appoint a governor, judges, and other magistrates. The registration of all conveyances of the corporation was also provided for.
The governor was to take an oath to observe all the acts of Parliament relating to trade and navigation, and to obey all royal instructions pursuant thereto. The governor of South Carolina was to
have the chief command of the militia of the province; and
goods were to be imported and exported without touching at any
port in South Carolina. At the end of the twenty-one years, the
crown was to establish such form of government in the province,
and such method of making laws therefor, as in its pleasure should




432               COLONIAL CONSTITUTIONS.
be deemed meet; and all officers should be then appointed by the
crown.
It continued to languish, until at length the trustees, wearied
with their own labors, and the complaints of the people, in June,
1751, surrendered the charter to the crown.  Henceforward it was
governed as a royal province, enjoying the same liberties and immunities as other royal provinces; and in process of time it began to
flourish, and at the period of the American Revolution it had
attained considerable importance among the colonies.
In respect to its ante-revolutionary jurisprudence, the same
system prevailed as in the Carolinas, from which it sprang. Intestate estates descended according to the course of the English
law,




CHAPTER XIV.
THE ANGLO-SAXON SYSTEM  IN NORTH AMERICA-DISPUTE WITH
ENGLAND-RIGHT OF REVOLUTION.
COMPARISON OF THE COLONIAL WITH THE ANGLO-SAXON SETTLEMENTS-DISTINCT
NESS OF THE COLONIES AND ITS CAUSES-DIFFERENT TIMES OF SETTLEMENTDISTANCE-NAVIGATION LAWS-RELIGIOUS ANIMOSITIES-POLITICAL ANTIPATHIES-NECESSITY OF THE REVOLUTIONARY WAR-THE NEW ENGLAND CONFEDERACY-NATURE OF THE CONTROVERSY OF THE COLONIES WITH ENGLANDCLAIMS OF THE ENGLISH PARLIAMENT-OPPOSITE VIEW OF THE COLONIESHOW VINDICATED BY THE PRESENT COLONIAL SYSTEM OF ENGLAND-OBSERVATIONS-FORCE OF CIRCUMSTANCES IN COMPELLING THE ADOPTION OF THE
ANGLO-SAXON SYSTEM IN AMERICA-THE RIGHT OF REVOLUTION-FOUNDED IN
NATURE-OBJECT OF GOVERNMENTS-THE DOCTRINE OF CONSENT-REVOLUTION
ONLY JUSTIFIABLE IN CASE OF TYRANNY OR USURPATION-OBJECTION TO THE
RIGHT OF REVOLUTION ON SCRIPTURAL GROUNDS-HOW ANSWERED-CASE OF
HEZEKIAH-REVOLUTION IS JUSTIFIABLE POLITICALLY ONLY BY SUCCESSPRUDENTIALLY BY AN IMPROVED GOVERNMENT-THE AMERICAN REVOLUTION
JUSTIFIED RELIGIOUSLY, POLITICALLY, PRUDENTIALLY-A QUESTION.
To the planting of the English colonies in North America we
might with all propriety apply even stronger language than was
used in our first chapter to describe the Anglo-Saxon settlements
in England.  Like these the colonies were from the first entirely
independent of each other. They were planted at times widely
different, at distant places, under different auspices and different leaders, with antagonistic principles of faith and government. Established separately, they remained in all respects distinct and almost
without intercourse until the period of the Revolution. Thus,
though, like the Saxon tribes, they were of one race and of one
speech, yet they were in no sense one people. They were even
more distinct than the kingdoms of the Saxon Octarchy. No similarity of natural circumstances availed to unite them. Only com19




434      ANGLO-SAXON SYSTEM IN NORTH AMERICA.
mon dangers and the sufferance of common wrongs forced them
at length to enter into a confederate alliance to maintain their
common rights.
Not to reckon the early settlements which failed of success, the
first permanent settlement was made in Virginia in 1606. Georgia
was not colonized till after 1732. Thus the period of settlements
extends over a hundred and twenty-six years at least, and by a
different and still fair computation it might be made much more.
But at least more than four generations of Virginian colonists had
lived, and the fifth generation was already well advanced before the
first field had been cultivated or the first house built in the colony
of Georgia.
At the present day, with our immense facilities of locomotion,
we have but a faint idea of the obstacle to intercourse imposed upon
the colonists by distance. From Boston to Savannah was a sea voyage
of weeks, along a coast of which there were no charts, and must be
made in some small craft but little suited to endure the storms of
the Atlantic. Colonists much nearer to each other than the colonists of Georgia and Massachusetts looked upon the distance as
immense; and if we observe the difficulties to be overcome in
travelling, they were in fact more remote from each other than Europe and America at the present day. Moreover, the Government
of England did not favor intercourse between them; and the naviga:
tion laws, prohibiting direct trade from the colonies to foreign nations, hindered the development of their marine to an extent which
operated almost as a prohibition of trade between themselves.
And apart from interest there was little to create a very strong
desire for intercourse. Between the Quaker-burning Puritan of
Massachusetts and the Quaker colonist of Pennsylvania, the
Roman Catholic of Maryland and the Episcopalian of Virginia or
the Carolinas, there were strong religious animosities; and none of
them were altogether free from the intolerance of religious rancor.
In New England, women who dissented from dissent were whipped
naked from Boston to Dedham, and Baptists were drowned to deatha rather grim jest on the doctrine of immersion. In Virginia, nonconformists to the Church of England were expelled the colony.
And even in Maryland an act was passed in 1649, though it does




DISPUTE WITH ENGLAND. RIGHT OF REVOLUTION.   435
not appear to have been put in force, which punished Unitarianism
with death and confiscation. Religious prejudices so strong and so
radically opposite were alone sufficient to prevent friendly communications; and in fact most of the colonies were in this respect as
widely separated from each other as Jerusalem and Samaria of old;
they had " no dealings" with each other.
Nor were their political antipathies much less decided. The
Cavalier of the South and the Roundhead regicide of the New England settlements had no point of agreement, and their mutual
bitterness was as intense as that of their respective parties in the
mother country. Aside from these direct antagonistic influences,
their different colonial constitutions had a tendency to keep them
separate.  The Plymouth colonies were in the strictest sense
democracies. In fact, they were the only radical democracies then
in the world. The Carolinas, on the contrary, were, by the constitution framed for them by Locke, established on a basis of aristocratic precedence and power; although the popular principle was
made coordinate with the aristocratic.  Other colonies, and at a
later date the Carolinas also, were brought into near relations to the
Government at home by the appointment of their governors and
councils by the crown; which, notwithstanding that the assemblies
were elected by the people, kept alive a cordial feeling of attachment to the sovereign. In the proprietary governments, particularly
that of Maryland, where " Cecilius, Lord Baltimore, sovereign lord
and proprietary of the province," exercised in all but name the
functions of a constitutional monarch, thus uniting in his single
person the office of a king, the status of an English peer, and the
enlightenment of a popular leader, a peculiarity of public feeling
was produced perhaps more favorable to real progress than any of
the others.  It was preeminently a government of law.  The
" sovereign lord " and the free colonist were equally its subjects.
Yet the constitution was as far removed from premature democracy
as from an effete absolutism.  Perhaps of all forms of colonial existence, this, wisely administered, was least objectionable.  Conservative and yet progressive, it neither trampled rudely on the institutions of the past, nor rushed with indiscreet haste into the uncertainties of an unripe future. But whichever of these forms of local




436      ANGLO-SAXON SYSTEM IN NORTH AMERICA.
government may have been best, each was supreme within the colony where it prevailed; each was alike esteemed by those among
whom it had been instituted; and where each existed all the others
were alike despised.
It was a happy circumstance that there was little intercourse
among the colonies in the colonial period, for their intercourse
could hardly have been friendly. It was fortunate, also, that this
absolute independence of each other as to government was sanctioned
by prescription, not less than by law and fact, before their union had
been dreamed of; for an unwise union of antagonistic elements could
only have produced a strife of factions, civil war, and military
despotism, or permanent disruption; and a union of the colonies
before the acknowledgment of their entire separate sovereignty
would have been an unwise union, offering continual pretexts for
sectional aggressions upon local institutions, and compelling sectional resistance to the usurpation of majorities.  On the other
hand, it was a wise and gracious providence which laid upon the
colonies a war of years, to be endured, not in formal union with each
other, but as a confederation of independent States; till they should
have forgotten ancient discords in the recollection of their common
wrongs, their common glory, and their common interests; that is,
till they should have been prepared for union under one political
organization, which, without destroying or impairing their distinct
supremacy as sovereign States, should yet unite them by a common
bond in all things in regard to which their interests were identical
-a bond which, under God, gave them seventy years of domestic
peace, which nothing but judicial blindness could have led the people to assail, and which God's judgment on a thankless people could
alone have suffered to be broken.
There was, however, one notable instance of colonial combination and confederation in New England.  It was proposed as early
as 1637, but difficulties having occurred, the articles of confederation were not adopted till 1643, when " a perpetual league of friendship and amity," styled the United Colonies of New England, was
formally entered into, "for purposes of offence and defence, and
mutual advice and succor," by the colonies of Massachusetts, Connecticut, New Haven, and Plymouth.  Rhode Island asked to be




DISPUTE WITH ENGLAND. RIGHT OF REVOLUTION.  437
admitted to the league, but was rejected. By the conditions of this
union the charges of all wars, offensive and defensive, were to be
borne in common, according to an apportionment previously agreed
upon. In case of the invasion of any colony, the others were to furnish a certain contingent of armed men for its defence.  Commissioners appointed by each colony were to meet and determine all
points of war, peace, leagues, aids, charges, &c., and to frame and
establish agreements and orders for other general interests. No
general government over the confederated colonies was contemplated. Each was still in all respects to govern its own people according to the tenor of its charter.  This union, so important during the
troubles which then agitated the mother country, was not annulled
by Charles II. on his restoration; but though it was styled perpetual, it lasted only forty-three years, when it ceased upon the abrogation of colonial charters by King James. It was never afterwards
renewed.
In the beginning of the previous chapter, we have shown the constitutional status of the individual colonist. The mutual independence
of the colonies has just been illustrated. It remains that we should
indicate the status of the colonies in respect of England, which will
perhaps be best done if we state at once the opposite constitutional
positions assumed by England and the colonies respectively in the
controversy which resulted in the Revolution. This was a new question in England, in regard to which there was much confusion of
ideas. The general scope, however, of the several arguments was
this: On the part of England it was claimed that her American
possessions were acquired in part by conquest and in part by cession
from the natives; that these possessions were therefore held by
right of conquest; that colonists and settlers in  a conquered
country are, in common with the natives of the country, to be governed by such laws as it may please the conqueror to impose, and
to enjoy only such rights as he may please to recognize; that the
colonies were in no sense parts of England, but separate and subordinate dominions; that they were mere dependencies, not on the
crown, but on the realm of England; and hence that the realm, as
represented by the Parliament of England, including king, lords,
and commons, was entitled by the right of conquest to impose such
laws and taxes on them as its sole will should direct.




438      ANGLO-SAXON SYSTEM IN NORTH AMERICA.
In answer to this reasoning the colonies maintained that they
themselves, whether by conquest or by cession, were the true acquirers of their several territories, which, till settled by them, had
belonged to England only by the vague right of discovery; that it
was only through them that England had actually become possessed of these dominions; and that it was absurd that they should
be subjected to a right of conquest they had themselves acquired.
Reverting to the circumstances under which the colonies were
planted, they observed that the original colonists were free-born
Englishmen; that they had settled in a country which had as
yet been neither conquered nor acquired by cession, and in
which no laws nor government existed; that therefore by
the law of nations they were, from the moment of their landing, governed by the laws of England, as those laws existed
at that time and so far as they were applicable to the condition of a colony; and hence that they were from the first fully
invested with the rights, as well as obligated by the duties, of naturalborn English subjects. They conceded that the colonies were not
parts of the realm of England, but separate and distinct dominions,
nor did they deny that to a limited extent they were dependent on
England. Some of them admitted further that they were dependent, not upon the crown, but on the realm of England. But they
declared that this dependence must be so interpreted as not to override the constitutional rights of the colonists as English subjects
under the laws of England, as they stood at the time of the plantation of their several colonies. Referring to the Great Charter of
King John, the most important of those laws, and the scarcely less
important statute De tallagio non concedendo of Edward I., they showed
that the consent of the subject given through his representatives in
Parliament was necessary to the legal levying of taxes.  Hence
they argued that, according to the letter not less than the spirit of
the English Constitution, taxes on the colonists could only be
assessed by their consent so given; and since the colonies, being
separate dominions from the realm of England, were incapable of
being represented in the Parliament of England, the conclusion
was inevitable that their own colonial legislatures, in which only
they were represented, could alone give constitutional sanction to




DISPUTE WITH ENGLAND.  RIGHT OF REVOLUTION.  439
the imposition of taxes in the colonies.  Concerning the claim of
Parliament to exercise the rights of paramount sovereignty, they
said that the dependence of the colonists, not being such as to
vitiate the rights or liberties of their inhabitants, the sovereignty of
Parliament, could in reason be no greater in the colonies than the
king's sovereignty in England, and hence that, as the sovereign in
England could make no laws and impose no taxes but through Parliament, so in the colonies the Parliament of England could have no
sovereign right of legislation or taxation, but through the colonial
legislatures. Every position thus assumed by the Americans in their
controversy with Great Britain, has since that time been completely
vindicated by the verdict of the English Parliament itself. The
whole colonial system has been constituted on the principles enunciated in America a century ago; and the concessions which would
have kept the colonies of North America devoted subjects of the
British crown, are now the common axioms of its colonial jurisprudence. A more complete justification there could hardly be of
the position of colonial America; but we may well wonder that a
legislative body like the Parliament of England, which had battled so
determinedly against the usurpations of a monarchy, and by the Bill
of Rights and Act of Settlement had so completely limited the
crown as to insure the freedom of the subject, should itself have
seized so empty a pretext to set up a despotic parliamentary
authority over its dependencies.  And when we find that one
whose mind was so clear, large, and liberal as Blackstone's, could
(surely through oversight) accept the empty and self-contradictory reasoning which aimed to prove that the colonial dependencies
were to be governed by the right of conquest as subjugated provinces, it would be difficult to give a better exposition of the strange
anomaly than is enunciated in the aphorism, that despotism, when
possible, is always certain. The saying is as true of parliaments as
of princes, and as true of majorities as of parliaments. Wherever
power is lodged, there is a certainty that, if not checked by a restraining influence, it will be used to its full limit, if indeed all
limitations be not broken down.'The cases of King John, the Puritan majority of eleven in the Long Parliament, and the present
instance of parliamentary usurpation in the matter of the colonies,




440      ANGLO-SAXON SYSTEM IN NORTH AMIERICA.
will illustrate our meaning.  Cases nearer home, however obvious,
we cannot here discuss.'
We now approach the grand event of the last century, the reestablishment on a new continent, with all the aids of a mature and
still advancing civilization, of the ancient principle which lay at the
foundation of the Anglo-Saxon polity. Already we have seen the
colonies, established like the Saxon tribes, in perfect independence
of each other, growing up in the enjoyment of the rights and liberties, which centuries of bloodshed had at lenght wrung from the
Norman monarchs and their various successors. We have seen
them educated, by the exercise of local sovereignty as dependencies of a great kingdom, for still more complete self-government.
The arrogant assumption of the English Government of a right
to govern them as denizens of conquered countries by the arbitrary
laws of conquest, left them no choice but to become the slaves of
arbitrary power or to exercise the great right of rebellion against
tyranny which is so emphatically recognized in Magna Charta.
Individually they were too weak to rebel successfully, and hence a
confederation became necessary to insure success. Their first confederation showed them the advantages of union, and revealed defects
in its extemporary articles; and thus through error and defect they
were led to the incomparable form of government provided by the
present Constitution, which is a complete revival of the Anglo-Saxon
polity. Securing and maintaining the complete right of self-government to every sovereign State, and legislating for them only in matters
as to which their interests are identical, the Union, brought into
existence by the States under the Constitution, is a full revival of
the system of the Anglo-Saxon Empire, differing from it only by
the various improvements which the progress of civilization have
suggested.
The story of the Revolutionary War lies beyond our province,
but before we enter on the constitutional detail reserved to us, we
venture to premise a few words on the right of revolution.
The right of revolution is simply a particular application of the
general right of self-defence. In the state of nature every individual person has the right to defend by violence his life, liberty, and
property, against assaults by whomsoever made. The purpose of




DISPUTE WITH ENGLAND. RIGHT OF REVOLUTION.   441
political organizations is to substitute the whole power of a community for that of individuals in the protecting of their persons and
their properties, by means of laws for the restraint and punishment
of wrong-doers within, and military combinations to resist foreign
aggressions from without. It is on this ground that the doctrine of
consent rests.  For in any government it is necessary that a portion
of the freedom of the individual should be surrendered that the rest
may be preserved.  He resigns his right of individual self-defence
and submits to the restraints of law in order that he may enjoy more
perfect security. But if a government be set over him without his
consent, this is itself an invasion of his liberty which the law of
nature authorizes him to resist.   Hence arbitrary governments,
whose subjects have neither expressly nor tacitly consented to their
institution, and governments whose title to exist is founded on the
so-called right of conquest, are in a perpetual state of war with
nature, and their subjects have a perpetual and indefeasible right
of rebellion against them. No prescription holds against the laws
of nature; and such governments, being governments of force and
contrary to nature, hold their power subject to the people's right
to reassert the law of nature by resisting, and, if possible, destroying
their usurped power.
There are, however, few civilized governments to which the subjects have not yielded an express or tacit consent; and lawful governments can only be lawfully resisted when they are perverted from
their lawful purposes. Man is a social being, naturally living in
societies; to the existence of society, government is necessary; hence
anarchy is repugnant to nature; and therefore the wanton subversion of governments, lawfully instituted by consent of their subjects,
being an act which tends to anarchy, is a crime against the law of
nature. But when lawful governments, instead of protecting life,
liberty, and property, become or threaten to become destructive of
these or prejudicial to them, they proclaim war against the law of
nature, and their subjects have the right to overthrow them. In
this case it is the government that is truly rebellious, and the people
who are truly obedient to the law of nature.
To this view there are some who object on Scriptural grounds.
"All power is of God; " " the powers that be are ordained of God; "
19*




442      ANGLO-SAXON SYSTEM -IN NORTH AMERICA.
the magistrate is "' the minister of God;" " let every soul be subject
to the higher powers." These are the sayings of St. Paul. We have
only, however, to carry his injunctions far enough in order to show
that they must be received with considerable limitations. If the magistrate is the minister of God who acquires his authority over a kingdom through an armed force of one hundred thousand men, it is difficult
to say why a marauding chief who occupies a district at the head of a
band of brigands is not equally the minister of God. And if every soul
is to be subject to the edicts of the one, it would be hard to find a
reason why the same rule should not hold good of the demands of his
less mighty but not less righteous imitator. Scripture itself gives
warrant for rebellion against arbitrary and- unjust power.  The
exodus of Israel from Egypt was rebellion against a government to
which they had consented by their voluntary settlement under it, but
from which they were released because it had become oppressive.
And in the instance of Hezekiah, so aptly quoted by Locke, we have
a case in which the indefeasible right of rebellion against a subjugating power, even after submission and enforced consent, is perfectly
sustained. Hezekiah and his country had been conquered by Assyria,
to the king of which he had submitted. On condition of consenting
to the supremacy of Assyria, he had been suffered to retain his throne.
But " the Lord was with Hezekiah and he prospered; wherefore he
went forth, and he rebelled against the king of Assyria and served
him not." (2 Kings xviii. 7.) This is spoken of " the good king
Hezekiah," and spoken certainly not in reprehension.  The sacred
penman represents this godly king's rebellion as the consequence of
the divine presence and blessing. Unquestionably lawful magistrates are ministers of God for good to men, but when their lawful
powers are prostituted to subserve the devil's purposes, whose ministers do they become? The devil himself is styled in Holy Writ the
~ prince of this world," and, to judge from what we see around us in
this nineteenth century, he is one of the mightiest of the " powers
that be; " but here at least resistance to the tyrant is obedience to
God. The truth is, the religion of the Holy Scriptures is a religion
of common sense, and a religion of righteousness. It does not
declare a wrong to be right because it is sustained by force, or
because it has the trappings of legitimate authority to cover an




DISPUTE WITH ENGLAND.  RIGHT OF REVOLUTION.   443
unlawful usurpation. Lawful magistrates and lawful governments
it is the Christian's duty to obey as ministers of God.  Resistance
to usurped power-that is, to a robbery of man's most precious heritage-is not contrary either to the letter or the spirit of the
Scriptures.
A Christian, then, may lawfully rebel against the government
of which he is a subject; but only when it is a lawless government;
that is, when its authority is based, not on the law of nature, but of
force, or when its power, though lawfully acquired, is not so exercised as to protect the subject in his rights of property and person,
which is the object of all government. Against such a government,
or one which threatens to become such, but against such only, may
a Christian lawfully rebel or aid a revolution.
Politically, however, revolution must be justified by quite a
different argument-success.  International law takes little cognizance of the original right by which power is acquired. The fact
of its existence is the only reason for its recognition.  Till the
revolution is successful by the overthrow of the government whose
destruction is attempted, it is in the eye of international law rebellion.  Once successful, the authority it sets up becomes legitimate.
Politically speaking, the wrongs which may have caused it, or the
rights it was intended to secure, are nothing. Revolution is politically justified by nothing but success.
And, prudentially, a revolution must be justified, both by success
and by a capacity to organize a better government than that which
it subverts. It is not enough that the original government may
have been bad or badly administered, for unless it be successful, and
unless the new form of administration or the new rules be better
than the old, the uncertainties and strife of revolution have been
incurred in vain. The French Revolution, though productive in the
end of good results, was not, prudentially, a justifiable revolution.
Its success was merely temporary, and the government it organized
instead of that of the beheaded Louis was in all respects worse than
that they cast down.  It was wrong prudentially, first, because it
failed of permanent success, and second, because, while its power continued, it did not improve the government, but rather made it
worse.




444        ANGLO-SAXON SYSTEM  IN NORTH AMERICA.
The revolution of the colonies was right religiously, politically,
and prudentially.
It was right religiously, for it was a revolution against a tyranny,
that is, against a government which assumed, in the language of King
James, to " exercise power beyond right."
It was justified politically, by complete and permanent success.
It was justified prudentially, by its creation of a government
whose constitution is the admiration of the world.  If the virtue of
the people rise again to an equality with the incomparable wisdom
of the Constitution, then the lover of free institutions may cry, Esto
perpetua; and the prophet may respond, ERIT PERPETUA.  If otherwise-?
NOTE.
1. THE following significant article, which we give verbatim as recently published in a leading daily paper of the city of New York, will serve to show the
power of a vigorous and homogeneous MINORITY to turn the machinery of government from its purposes of common benefit to the subservience of petty and
peculiar interests:
"THE YANKEE TYRANNY-THE CENTRAL AND WESTERN STATES
MERE "HEWERS OF WOOD" TO NEW  ENGLAND.
" Previous to the present civil war the agitators of New England were eternally
denouncing the alleged ascendency of the seven Cotton States in shaping and
controlling the policy of our National Government.'Everything is shaped to
benefit the Cotton States,' was the cry of the New England fanatics.'The
whole Government is in the hands of the South, and every measure of legislation
is held subordinate to Southern interests.' That there was a small basis of fact
for these assertions is not to be denied, and that basis had this extent, nMo more:
The seven Cotton States demanded that the Constitution of the United States
should be upheld, and that no legislation hostile to their property interests in
the institution of slavery should be undertaken by Congress. They also further
demanded, in one single instance-the Fugitive Slave Law-that Congress should
make some legislative provision to enforce one of the rights guaranteed to them
by the Constitution against the treasonable and unconstitutional opposition
thereto of these same New England fanatics. This was about all the'peculiar
legislation' the South demanded, and, in turn for receiving it, they-a wholly
agricultural and producing people-acquiesced without murmur in all the legislation demanded by the complex commercial, agricultural, and manufacturing
interests of the remainder of the Union.




DISPUTE WITH ENGLAND.  RIGIIT OF REVOLUTION.   445
" Well, the Union was at last broken up, the South being no longer able to
bear peacefully the constant irritation and dangers resulting from the aggressive
character of New England's anti-slavery fanaticism. The fourteen Senators from
the seven Cotton States not only lost their ascendency in our national affairs, but
stepped out of the Union altogether. And now what do we find to be the result? Just this: That the twelve Senators of the six New England States have
adopted the rdle which they so vehemently denounced in what they were pleased
to call the'Black Gulf Squadron,' and that our whole national policy is to-day
subservient to the interests and dictates, the bigotries and narrow, puritanical
prejudices, of the twelve Senators who, forming the'Black Republican Squadron,' are sent from the New England States to Washington. Our present actual
masters are more sordid, grasping, and cruel than were the alleged Southern
managers of the past. They legislate with a view exclusively to New England
interests, and their object would seem to be to throw all the burdens of taxation
and revenue upon the other portions of the loyal States, while compelling us all,
by high protective and prohibitory importation duties, to purchase New England
manufactures, however inferior to those we could obtain much cheaper abroad,
at just such prices as may suit the pockets-we will not say consciences, for
they appear to have none-of New England's manufacturing aristocracy.
" The main burdens of our internal revenue were thrown by the legislation of
last winter upon two articles-whiskey and tobacco-in which the New England
States have but the slightest interest, while our custom-house duties were advanced to figures making regular importation all but certainly unprofitable, and
of necessity driving the trade, heretofore centred at New York, to be mainly
transacted thereafter by active parties of smugglers along the Canadian bordelr.
So much is this the case, that the Secretary of. the Treasury is now devising
means to check this very smuggling, which has reached, even while yet in its infancy, enormous proportions-Secretary Fessenden apparently forgetting Sir
Robert Peel's maxim, as the result of English experience, that'it is utterly impossible to check any smuggling which, if successful, will pay a profit of over
thirty per cent. In our case, however, the profits of running certain articles
into the United States from Canada will be many hundreds per cent.; nor can
this be stopped in any manner, unless we build along the Canadian frontier such
a wall as divides the Chinese from the old Tartar empire. Even this would
hardly suffice; for, with such a profit as New England greed has left open to
the smugglers, it would be a remunerative speculation to start a hundred large
balloons in this species of traffic.
"In the last session of the Senate, let it not be forgotten, the chairman of
every important committee was a New Englander, the presiding officer was a
New Englander, and all the legislation ground out was either to benefit New
England interests, or to supply food to New England bigotries and hates. The
trade of New York city was to be destroyed by imposing duties which would
force foreign merchandise up to Canada, and thence, by smuggling, into the
United States; while New England was to avoid the heavy burden of taxation,




446        ANGLO-SAXON  SYSTEM  IN NORTH AMERICA.
in great measure, by placing the heaviest excise duties of our internal revenue
upon two articles in which her interests are insignificant. Her six States, with
an aggregate population of three million one hundred and thirty-five thousand
three hundred and one, according to the census of 1860, are represented by
twelve Senators, holding the chairmanship of all the most important committees
of the Senate of the Union; while New York, with a population of three million eight hundred and eighty-seven thousand five hundred and forty-two, according to the same census, has but two members in the Senate; and these two,
upon every occasion in which they attempted to defend the interests of New York
and the Central States, were roughly overriden and voted down by the'Black
Republican Squadron' from New England.
" Thus it is that history repeats itself. The Puritans fled to this country
under the pretence of a desire to secure religious liberty; but no sooner had they
obtained it for themselves than they commenced burning Quakers, nonconformists, witches, and all others whose tenets were not identical with their own,
or whose practices they could not understand. They protested against the ascendancy of the' Black Gulf Squadron' in our national affairs, even provoking
a civil war rather than submit to it; but no sooner are they given a chance of
power than we find the'Black Republican Squadron' in full sweep, with the
black flag hoisted against the rights, interests, and opinions of every section of the
Union. Our whole Government to-day is one of Yankee ideas, and the most
miserable sort of Yankee philanthropic notions. The sceptre thrown down by
the extreme South as it rushed out of the Union is now wielded more fiercely
and remorselessly by the extreme Northeastern section of our people.
"When will the day come, it may be asked, in which the great Central and
Western States will assert their.natural supremacy, and crush out the extremists,
or corner-men of the continent, as we may call them-one faction of these residing in the southeast, and the other in the northeast corner of the Atlantic seaboard?  When will the day come that we of the Centre and West shall be'Americans,' and not'Yankees,' in the eyes of Europe, and, indeed, of all the
world? We are called'Yankees' now-even by our Southern foes, who
know better, geographically-merely because it is seen that we are the helots
of a Yankee oligarchy, patiently submitting to Yankee rule, and fighting out a
war which had its origin in Yankee intolerance and bigotry. With seven hundred
and fifty thousand more population than the six New England States put together, we have but two representatives in the Senate of the United States, while
New England has twelve; and not content with foisting on us the greater part
of the burdens of the war, while at the same time ruining the trade and marine of
our greatest city-the greatest city on the continent-New England has now capped the climax of her oppressions by so arranging it that, while but twelve and a
half per cent. of her population has been enrolled for the coming draft, no less
than twenty-six per cent. of our population in the first ten districts of New York
have been enrolled for the same purpose! Does this really mean that the lives
of two and a fraction citizens of New York are but worth the life of one Massa



DISPUTE WITH ENGLAND.  RIGHT OF REVOLUTION.   447
chusetts man? Or will the Bay State assert that one of her lanky sons is able to
whip two and something over of our New York athletes? The question is a
pertinent one: for, as things are now progressing, no one can tell how soon
these questions may be brought to a very practical test. The only remedy for
these evils is for the Central and Northern States to make a strong alliance,
offensive and defensive, during the progress of the Chicago Convention, and to
place upon a platform, opposed alike to Southeastern and Northeastern extremists, some conservative soldier or statesman, who  shall be the vigorous exponent of a national, anti-corner policy."-NEw YORK HERALD.




CHAPTER XV.
INDEPENDENCE.
FIRST CONGRESS OF COLONIAL DELEGATES-ASSERTION OF RIGHTS-NON-INTERCOURSE
-PETITION TO THE KING-ADVICE TO MASSACHUSETTS-LORD NORTH'S MOTION
REJECTED-ADJOURNMENT OF CONGRESS-ITS PROCEEDINGS AFTER REASSEMBLING-DEBATE ON THE PROPOSITION TO DECLARE THE'INDEPENDENCE OF THE
COLONIES-COMMITTEE APPOINTED TO DRAFT A FORM OF CONFEDERATIONFURTHER STEPS TOWARDS THE ADOPTION OF THE DECLARATION-ITS FINAL SIGNATURE BY THE MEMBERS OF CONVENTION-MATTER OF THE DECLARATIONWHENCE DERIVED-ITS LEGAL AND CONSTITUTIONAL EFFECT-ITS TRUE
GRANDEUR.
THE first Congress of delegates " chosen and appointed by
the several colonies and provinces in North America to take
into consideration the actual condition of the same, and the difficulties subsisting between them and Great Britain," was held in
Philadelphia, on the 5th of September, 1774. Delegates attended
from New Hampshire, Massachusetts Bay, Rhode Island and
Providence Plantations, Connecticut, New York, New Jersey,
Pennsylvania, the Delaware Counties, Maryland, Virginia, and
South Carolina. On the 14th of September, delegates appeared
from North Carolina. It was not till the following year that an
informal representative of Georgia was admitted.
On the following day after the adoption of rules of order, Congress appointed a committee " to state the rights of the colonies in
general, the several instances in which those rights had been violated or infringed, and the means most proper to be pursued for
obtaining a restoration of them." Another committee was appointed
" to examine and report the several statutes which affected the trade
and manufactures of the colonies."
On the 24th of September, Congress resolved that the dele



INDEPENDENCE.                       449
gates would confine themselves to the consideration of such rights
as had been infringed by acts of the British Parliament after the
year 1763, postponing the further consideration of the general state
of American rights to a future day.
On the 14th of October, Congress made a declaration and
adopted resolutions relative to the rights and grievances of the
colonies. It was unanimously resolved " that the respective colonies are entitled to the common law of England, and more especially
to the great and inestimable privilege of being tried by their peers of the
vicinage, according to the course of that law;" "that they were
entitled to the benefit of such statutes as existed at the time of
their colonization, and which they have, by experience, respectively
found to be applicable to their several and local circumstances; "
and that their ancestors, at the time of their immigration, were
" entitled to all the rights, liberties, and immunities of free and
natural-born subjects within the realms of England."
Previously to this date, resolutions of commercial non-intercourse with Great Britain, until the grievances of America
should be redressed, had been adopted, and on the 20th of October,
a formal agreement for this purpose was entered into by Congress.
At different times afterwards letters were sent to the Canadian
colonies, inviting their cooperation; and an address to the people of
Great Britain was published, setting forth the grievances and justifying the conduct of the people of the colonies; after which and
other unimportant matters, Congress adjourned on the 22d of
October, to meet again at Philadelphia on the 10th of May, 1775.
On the appointed day Congress reassembled, and on the 13th
Lyman Hall was admitted as a delegate from the parish of St.
Johq's, in the colony of Georgia; but not considering himself as
the representative of that colony, he declined voting, except on
occasions when Congress did not vote by colonies. Non-intercourse
with colonies not represented in Congress was resolved upon, including the colony of Georgia, except the parish of St. Johl's,
represented by Mr. Hall.
On the 26th of May, it was determined " that the colonies be
put immediately into a state of defence; that a fresh petition to




450                    INDEPENDENCE.
the king, with a view to reconcile differences, be prepared; and
that a letter to the people of Canada be reported." This letter,
which was approved the day following, and ordered to be signed by
the President, solicits the friendship of the Canadians, calls upon
them to assert their rights, and exhorts them against hostilities.
On the 9th of June, in consequence of a letter from Massachusetts Bay, which had been previously under consideration, Congress
resolved that the governor and lieutenant-governor of that colony
were to be considered as absent and their offices vacant; and it
was recommended to the Provincial Convention to write letters to
the inhabitants of the several places which were entitled to representation in Assembly, requesting them  to choose representatives; and that the Assembly, when chosen, should elect councillors; and that such Assembly or Council should exercise the
powers of government until a governor of his majesty's appointment
would consent to govern the colony according to its charter. This
decision of Congress, it will be observed, was exactly in accordance
with the limitation of rebellion in Magna Charta, to the continuance
of wrong on the king's part. It did not assume the extreme position of the Bill of Rights, that the absence of the sovereign or his
representative vacates and abdicates his right of sovereignty.
The most important step was now taken, by the organization of
an army under Washington, and Congress at the same time resolved that they would "'maintain, assist, and adhere to George
Washington, with their lives and fortunes, in the same cause."
This step was followed by the emission of bills of credit to the
amount of two millions of dollars, for the redemption of which the
credit of the twelve confederated colonies was pledged. From
this time to the close of the session various acts occupied the attention of Congress. A petition to the king; another address to the
British people, invoking sympathy and forbearance; a letter of
thanks for sympathy, addressed to the corporation of the city of
London; a like address of thanks to the Assembly of Jamaica; a
further issue of bills of credit; the appointment of Benjamin Franklin' as postmaster-general; and an address to the people of Ireland-all indicate a spirit of conciliation, moderation, and determination worthy of their cause. Two more important.circumstances




INDEPENDENCE.                     451
indicate a growing feeling of union among them, and their sense
of the increased strength it imparted.  On the 20th of July, Congress was informed by a letter from the convention of Georgia that
that colony had acceded to the general association, and appointed
delegates to attend the Congress.  On the 31st, Congress declared
a resolution of the British House of Commons, commonly called
Lord North's motion, inadmissible as the basis of reconciliation.
This resolution proposed, under certain restrictions, to transfer the
right of taxing the colonies to the colonial assemblies; and it was
rejected, among other reasons, because, in the opinion of Congress
it imported only a suspension of the mode, and not a renunciation,
of the pretended right to tax the colonies.
On the 1st of August, Congress adjourned to the 5th of September, 1775, and on their reassembling, the delegates from Georgia
produced their credentials and took their seats.  Its principal acts
tending to complete independence of the mother country were as
follows: On the 13th of October, Congress ordered two armed
vessels to be fitted out. On the 3d of November it was resolved
to recommend to the Provincial Council of New Hampshire, which
bad applied for advice, to call a full and free representation of the
people, and to establish such a form of government as would best
promote the happiness of the people, &c., during the dispute between
Great Britain and the colonies. A similar resolution was entered
into in relation to South Carolina.  On the 20th of November
seizures and captures were authorized under commissions to be
granted by Congress, together with the condemnation of British
vessels employed against the colonies. On the 2d of December an
exchange of prisoners was declared proper. On the 4th of December a proclamation by Lord Dunmore called forth a recommendation to Virginia similar to that formerly made to New Hampshire
and South Carolina. On the 6th of December a determination was
expressed to retaliate for any undue severities inflicted by the
British on persons favoring, aiding, or abetting the cause of the
colonies. On the 13th of December a report was sanctioned for
fitting out a naval armament of thirteen ships, of which five were
to be of thirty-two guns each.   On the 17th of February a




452                     INDEPENDENCE.
standing committee of five was appointed for superintending the
treasury. On the 27th of February the middle and southern
colonies were divided into two military departments.   On the
9th of March it was resolved that no oath by way of test should be
exacted of the inhabitants of the colonies by military officers. On the
23d of March privateering was authorized against the enemies of
the United Colonies.
On the 10th of May it was resolved to recommend to the respective assemblies and conventions of the United Colonies, where
no government sufficient to the exigencies of their affairs had been
established, to adopt such governments as should, in the opinion
of the representatives of the people, best conduce to the happiness
and safety of their constituents in particular and of America in
general. A preamble to this resolution, agreed to on the 15th
of May, stated the intention to be totally to suppress the exercise
of every kind of authority under the British crown. This resolution was in effect a declaration of independence, only to be consummated by the great measure now to be narrated.
"In Congress, Friday, June 7th, 1776," says Mr. Jefferson,
"the delegates from  Virginia moved, in obedience to instructions
from their constituents, that the Congress should declare that these
United Colonies are, and of right ought to be, free and independent States; that they are absolved from all allegiance to the British crown; that all political connection between them and the
state of Great Britain is, and ought to be, totally dissolved; and
that measures should be immediately taken for procuring the assistance of foreign powers, and a confederation formed to bind the
colonies more closely together." The resolutions were debated on
Saturday, the 8th, and Monday, the 10th, when able arguments for
and against their adoption were presented. Omitting references to
considerations of mere expediency, the points of constitutional interest in this discussion, as preserved by Mr. Jefferson, may be
compared as follows. It was argued:
Against the resolutions, by Wilson,    In favor of the resolutions, by J.
Robert R. Livingston, E. Rutledge, and Adams, Lee, Wythe, and others:
others:
That though they were friends to    That no gentleman had argued




INDEPENDENCE.                           45 3
the measures themselves, and saw the  against the policy or the right of sepimpossibility that we should ever again  aration from Britain, nor had supposed
be united with Great Britain, yet they  it possible we should ever renew our
were against adopting them at this  connection; that they had only optime:                               posed its being now declared:
That the conduct we had formerly    That the question was not whether,
observed was wise and proper now, of  by a declaration of independence, we
deferring to take any capital step till  should make ourselves what we are
the voice of the people drove us into it:  not; but whether we should declare a
That they were our power, and  fact which already exists:
without them  our declarations could    That as to the people or Parliament
not be carried into effect:         of England, we had always been independent of them, their restraints on
our trade deriving efficacy from our
acquiescence only, and not from any
rights they possessed of imposing them;
and that so far our connection had been
federal only, and was now dissolved by
the commencement of hostilities:
That as to the king, we had been
bound to him by allegiance, but that
this bond was now dissolved by his con.
sent to the late act of Parliament, by
which he declares us out of his protection, and by his levying war on usa fact which had long ago proved us
out of his protection, it being a certain
position in law, that allegiance and
protection are reciprocal, the one ceasing when the other is withdrawn:
That James II. never declared the
people of England out of his protection; yet his actions proved it, and
the Parliament declared it:
No delegates, then, can be denied,
or ever want, a power of declaring an
existent truth.
That the people of the middle col-  That the delegates from the Delaonies (Maryland, Delaware, Pennsyl-  ware Counties having declared their
vania, the Jerseys, and New York)  constituents ready to join, there are
were not yet ripe for bidding adieu to  only two colonies, Pennsylvania and
British connection, but that they were  Maryland, whose delegates are absofast ripening, and, in a short time,  lutely tied up; and that these had, by
would join in the voice of America.  their instructions, only reserved a right




454                        I1NDEPENDENCE 
of confirming or rejecting the meas.
ure:
That the instructions from Pennsylvania might be accounted for from
the time in which they were drawn,
near a twelvemonth ago, since which
the face of affairs has totally changed:
That within that time it had become apparent that Britain was determined to accept nothing less than a
carte blanche, and that the king's answer to the lord mayor, aldermen, and
common council of London, which had
come to hand four days ago, must have
satisfied every one of this point:
That the people wait for us to lead
the way; that they are in favor of the
measure, though the instructions given
by some of their representatives are not:
That the voice of the representatives is not always consonant with the
voice of the people, and that this is
remarkably the case in these middle
colonies.
That the resolution entered by this  That the effect of the resolution of
house on the 15th of May, for sup-  the 15th of May had proved this;
pressing the exercise of all powers de-  which, raising the murmurs of some
rived from the crown, had shown, by  in the colonies of Pennsylvania and
the ferment into which it had thrown  Maryland, called forth the opposing
these middle colonies, that they had not  voice of the freer part of the people,
yet accommodated their minds to a  and proved them to be the majority
separation from the mother country:   even in these colonies:
That some of them had expressly     That the backwardness of these
forbidden their delegates to consent to  two colonies might be ascribed, partly
such a declaration, and others had  to the influence of proprietary power
given no instructions, and consequert-  and connections, and partly to their
ly no powers to give such consent:  having not yet been attacked by the
enemy:
That these causes were not likely
to be soon removed, as there seemed
no probability that the enemy would
make either of these the seat of this
summer's war:
That if the delegates of any par-   That it would be vain to wait ei



INDEPENDENCE.                          455
ticular colony had no power to declare  ther weeks or months for perfect unasuch colony independent, certain they  nimity, since it was impossible that all
were, the others could not declare it  men should ever become of one sentifor them; the colonies being as yet  ment on any question:
perfectly independent of each other:   That the conduct of some colonies,
from the beginning of this contest, had
given reason to suspect it was their
settled policy to keep in the rear of
the confederacy, that their particular
prospect might be better, even in the
worst event:
That, therefore, it was necessary
for those colonies who had thrown
themselves forward, and hazarded all
from the beginning, to come forward
now also, and put all again to their
own hazard:
That if such a declaration should   That the history of the Dutch Revnow be agreed to, these delegates must  olution, of whom only three states conretire, and  possibly their colonies  federated at first, proved that a secesmight secede from the Union:        sion of some colonies would not be so
dangerous as some apprehended:
That it was prudent to fix among    That it would be idle to lose time
ourselves the terms on which we would  in settling the terms of alliance, till we
form alliance, before we declared we  had first determined we would enter
would form one at all events.      into alliance.
In the course of this debate it appeared, says Jefferson, "that
the colonies of New York, New Jersey, Pennsylvania, Delaware,
Maryland, and South Carolina were not yet matured for falling
from the parent stem, but that they were fast advancing to that
state; " and it was therefore deemed prudent to postpone the final
decision to the 1st of July. In the mean time, however, a commit.
tee was appointed to draft a declaration to the effect " that the
United Colonies are, and of right ought to be, free and independent States; that they are absolved from all allegiance to the British crown; and that all political connection between them and the
state of Great Britain is, and ought to be, totally dissolved."' The
committee consisted of Jefferson, J. Adams, Franklin, Sherman,
and R. R. Livingston. Next day, the 11th of June, a resolution
was adopted to appoint a committee to prepare and digest a form
of confederation to be entered into between the colonies, and an



456                   INDEPENDENCE,
other committee to prepare a plan of treaties to be proposed to foreign powers.
On the 25th of June, a declaration of the deputies of Pennsylvania, in their provincial conference assembled, expressing their
willingness to concur in a vote declaring the United Colonies free
and independent States, was laid before Congress. On the 28th of
June, the committee appointed to draft a declaration of independence brought it in, and it was ordered to lie on the table. On Monday the 1st of July, a resolution of the convention of Maryland, passed on the 28th of June, authorizing the deputies of that colony to
concur in declaring the United Colonies free and independent States,
was laid before Congress and read. On the same day the house
(C resolved itself into a committee of the whole and resumed the
consideration of the original motion made by the delegates of Virginia, which, being again debated through the day, was carried in
the affirmative by the votes of New Hampshire, Connecticut, Massachusetts, Rhode Island, New Jersey, Maryland, Virginia, North
Carolina, and Georgia. South Carolina and Pennsylvania voted
against it. Delaware had but two members present, and they were
divided.  The delegates from New York declared they were for it
themselves, and were assured their constituents were for it; but
that their instructions having been drawn near a twelvemonth before,
when reconciliation was still the general object, they were enjoined
by them to do nothing which should impede that object. They,
therefore, thought themselves not justifiable in voting on either side,
and asked leave to withdraw from the question; which was given
them. The committee rose and reported their resolution to the
house. Mr. Edward Rutledge, of South Carolina, then requested
the determination might be put off to the next day, as he believed
his colleagues, though they disapproved of the resolution, would
then join in it for the sake of unanimity.  The ultimate question,
whether the house would agree to the resolution of the committee,
was accordingly postponed to the next day, when it was again
moved, and South Carolina concurred in voting for it. In the mean
time, a third member had come post from the Delaware Counties,
and turned the vote of that colony in favor of the resolution. Members of a different sentiment attended that morning from Pennsyl



INDEPENDENCE.                     457
vania also: her vote was changed, so that the whole twelve colonies,
who were authorized to vote at all, gave their voices for it; and
within a few days ( July 9) the convention of New York approved
of it, and thus supplied the void occasioned by the withdrawing of
her delegates from the vote.
" Congress proceeded, the same day, to consider the Declaration
of Independence, which had been reported, and laid on the table the
Friday preceding, and on Monday r -erred to a committee of the
whole. The pusillanimous idea that we had friends in England
worth keeping terms with still haunted the minds of many. For
this reason passages which conveyed censures on the people of England were struck out, lest they should give them offence. The
clause, too, reprobating the enslaving the inhabitants of Africa, was
struck out in complaisance to South Carolina and Georgia, who had
never attempted to restrain the importation of slaves, and who, on
the contrary, still wished to continue it.  Our Northren brethren
also, I believe, felt a little tender under those censures; for though
their people had very few slaves themselves, yet they had been
pretty considerable carriers of them to others.  The debates, having taken up the greater part of the 2d, 3d, and 4th days of July,
were, on the evening of the last, closed; the Declaration was reported
by the committee, agreed to by the house, and signed by every
member present, except Mr. Dickinson."  ( Writings of Jefferson, i.
p. 14.) It was thereupon resolved " that copies of this Declaration
be sent to the several assembles, conventions, and committees or
councils of safety, and to the several commanding officers of the
Continental troops, that it may be proclaimed in each of the United
States, and at the head of the army."
If we examine the matter of this venerable constitutional document, we discover in it no pretensions to originality or novelty.
The doctrine of the natural equality of men; the inalienability of
certain human rights; the obligation of governments to secure them;
the necessity of the consent of the governed to the validity of governments; and the right of the people to alter or abolish governments
which become destructive of their proper ends, are all derived from
Locke's treatise on government. The proposition that the king had
" abdicated government here by declaring us out of his protection
20




458                    INDEPENDENCE.
and making war against us," is a simple application of the theory of
the feudal law, which presumed that the allegiance of the vassal
was always conditional on the protection of the lord. These are
the only general propositions of the declaration. The form of its
particular accusations of the English sovereign will be readily perceived by those who have attentively observed the clauses of the
Petition of Right and of the Bill of Rights, to have been borrowed
from those documents. The writer of the Declaration had but an
old tale to repeat. The story of the colonies was the old story of
usurpation and resistance told in the history of every people which
has ever aimed at the achievement of a system of free government.
He made no attempt to make it striking by exaggeration or by introducing new features. Setting out with a few general propositions-which he modestly describes as " self-evident truths," but
which had never, not even in Locke, been rendered evident but
by a labored demonstration, till the wonderful simplicity of their
enunciation in the Declaration made them axiomatic-he proceeds
to tell in language the most simple and direct the tyrannous usurpations of the sovereign, the forbearance of the people, and their
final and irrevocable judgment that they were absolved from his
allegiance; appealing to the Supreme Judge of the world to attest
the righteousness of their cause and the rectitude of their intentions.
In the matter of the Declaration of Independence there is no new
principle for the profound student; but its manner is so exquisitely
fitted to the subject, so striking in its plain, manly directness, and
so touching from the total want of affectation in its style, that it
persuades at once the reason and the heart as no display of ostentatious rhetoric or labored argument could possibly persuade. Never
was such a tale so well told.
As to its effect, the Declaration of Independence was in the
strictest sense a declaration.  It wrought no change in the political
status of the States. It simply declared that the usurpations of the
sovereign had already brought about a change, by which, froln
being colonies of England, they had become free and independent
States.  It did not make them  free.  Their ancestors, the original
colonists, were free-born Englishmen, and had transmitted their
rights and liberties undiminished to their children. Magna Charta




INDEPENDENCE.                     459
had ever been the fundamental law in the colonies; and their code
was always the equitable code of English common law. The Revolution, therefore, was not undertaken to obtain, but to maintain their
freedom:-not because they were not freemen, but because a tyrannous attempt was made to make them slaves  When they became
independent they were no more free than they and their fathers had
always been. Mfagna Charta and the English common laws were
still theirs, as they are still ours; for, having been the fundamental
law in every colony, they still remained supreme when the colonies
became States; and never yet having been abrogated, they are still
the fundamentallaw in almost every American State. The Declaration, then, neither made the States free, nor condescended to prove
their right to freedom. It simply declared the fact. In like manner, the Declaration did not make them independent. It proclaimed
that they were already independent.  Their sovereign, by the abuse
of a sovereignty lawfully acquired, had given them the right of rebellion and revolution against him; so that they were now justified in
rejecting his sovereignty and in achieving their independence by
force cf arms. But it is not the right to achieve independence that
is asserted by the Declaration.  It is the fact of actual existing independence. And this assertion was based both on law and
on fact.  On law, because the king of England had declared them
"out of his protection," and as the object of government is protection, his renunciation of the duties was an abdication of the right of
sovereignty.  On fact, because the royal authority had ceased to
exist de facto in the colonies, and was sustained only within the lines
and posts of his invading army.  The Declaration, however, rests
its assertion of the independence of the States only on the ground
of right under the law of nature and of nations. A government,
however legitimate in its authority and righteous in its acts, might
have been temporarily overthrown by a turbulent people, and the
colonial governments might in this way have been independent de
facto though not dejTiree. The declaration of the independence of
the States is therefore wisely made, not on the ground that they had
been apparently successful in rebellion against their sovereign, but
that their sovereign had forfeited his sovereignty by a repudiation
cf its obligations, and, by thus leaving them without a sovereign,




460                   INDEPENDENCE.
had forced them, without any act of theirs, into a position of complete independence. The whole legal effect, then, of the Declaration
of Independence was to proclaim to the world the fact-and the
cause which had produced the fact-that "these United Colonies
were and of right ought to be, free and independent States."
The true grandeur of the Declaration is the courage which dared
to assume so bold a position, in defiance of so mighty an empire as
that of England. That thirteen petty colonies, scattered over half a
continent, and with an average population of less than 230,000
inhabitants, should exact the last letter of the bond of civilized
society from an empire on whose victorious arms the sun shines
through his whole diurnal revolution, was an act whose character
could only be discriminated after the event as one of matchless
folly or of matchless heroism. Measured by ordinary rules, it was
in the last degree rash and imprudent; but the colonists were not
guided by those ordinary rules which measure everything by circumstances. They were guided by the rules of heroes, measuring
their difficulties by the greatness of their own souls. It is this
heroic magnanimity, nowhere expressed but everywhere apparent in
the Declaration of Independence, that has made it for all coming
time the model and the hope of struggling and oppressed mankind.




IN CONGRESS, July 4th, 1776.
THE UNANIMOUS DECLARATION OF THE THIRTEEN
UNITED STATES OF AMERICA.
When, in the course of human events, it becomes necessary for
one people to dissolve the political bands which have connected
them with another, and to assume, among the powers of the earth,
the separate and equal station to which the laws of nature and of
nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them
to the separation.
We hold these truths to be self-evident, that all men are created
equal; that they are endowed by their Creator with certain unalienable rights; that among these, are life, liberty, and the pursuit of
happiness. That, to secure these rights, governments are instituted
among men, deriving their just powers from the consent of the
governed; that, whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to
abolish it, and to institute a new government, laying its foundation
on such principles, and organizing its powers in such form, as to
them shall seem most likely to effect their safety and happiness.
Prudence, indeed, will dictate that governments long established,
should not be changed for light and transient causes; and, accordingly, all experience hath shown, that mankind are more disposed
to suffer, while evils are sufferable, than to right themselves by
abolishing the forms to which they are accustomed. But, when a
long train of abuses and usurpations, pursuing invariably the same
object, evinces a design to reduce them under absolute despotism,
it is their right, it is their duty, to throw off such government, and




462                    INDEPENDENCE.
to provide new guards for their future security. Such has been
the patient sufferance of these colonies, and such is now the necessity which constrains them to alter their former systems of government. The history of the present king of Great Britain is a history of repeated injuries and usurpations, all having, in direct
object, the establishment of an absolute tyranny over these States.
To prove this, let facts be submitted to a candid world:
He has refused his assent to laws the most wholesome and
necessary for the public good.
He has forbidden his Governors to pass laws of immediate and
pressing importance, unless suspended in their operation till his
assent should be obtained; and, when so suspended, he has utterly
neglected to attend to them.
He has refused to pass other laws for the accommodation of
large districts of people, unless those people would relinquish the
right of representation in the legislature; a right inestimable to
them, and formidable to tyrants only.
He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public records,
for the sole purpose of fatiguing them into compliance with his
measures.
He has dissolved representative houses repeatedly, for opposing,
with manly firmness, his invasions on the rights of the people.
He has refused, for a long time after such dissolutions, to cause
others to be elected; whereby the legislative powers, incapable of
annihilation, have returned to the people at large for their exercise;
the State remaining, in the mean time, exposed to all the danger of
invasion from without, and convulsions within.
He has endeavored to prevent the population of these States;
for that purpose, obstructing the laws for naturalization of foreigners;
refusing to pass others to encourage their migration hither, and
raising the conditions of new appropriations of lands.
He has obstructed the administration of justice, by refusing his
assent to laws for establishing judiciary powers.
Hie has made judges dependent on his will alone, for the tenure
of their offices, and the amount and payment of their salaries.




INDEPENDENCE.                      463
He has erected a multitude of new offices, and sent hither
swarms of officers to harass our people, and eat out their substance.
He has kept among us, in times of peace, standing armies, without the consent of our legislature.
He has affected to render the military independent of, and superior to, the civil power.
He has combined, with others, to subject us to a jurisdiction
foreign to our constitution, and unacknowledged by our laws;
giving his assent to their acts of pretended legislation:
For quartering large bodies of armed troops among us:
For protecting them, by a mock trial, from punishment, for any
murders which they should commit on the inhabitants of these
States:
For cutting off our trade with all parts of the world:
For imposing taxes on us without our consent:
lor depriving us, in many cases, of the benefits of trial by jury:
For transporting us beyond seas to be tried for pretended offences:
For abolishing the free system of English laws in a neighboring
province, establishing therein an arbitrary government, and enlarging its boundaries, so as to render it at once an example and fit instrument for introducing the same absolute rule into these colonies:
For taking away our charters, abolishing our most valuable laws,
and altering, fundamentally, the powers of our governments:
For suspending our own legislatures, and declaring themselves
invested with power to legislate for us in all cases whatsoever.
He has abdicated government here, by declaring us out of his
protection, and waging war against us.
He has plundered our seas, ravaged our coasts, burnt our towns,
and destroyed the lives of our people.
He is, at this time, transporting large armies of foreign mercenaries to complete the works of death, desolation, and tyranny,
already begun, with circumstances of cruelty and perfidy scarcely
paralleled in the most barbarous ages, and totally unworthy the
head of a civilized nation.
He has constrained our fellow citizens, taken captive on the high




464                   INDEPENDENCE.
seas, to bear arms against their country, to become the executioners
of their friends and brethren, or to fall themselves by their hands.
He has excited domestic insurrections amongst us, and has endeavored to bring on the inhabitants of our frontiers, the merciless
Indian savages, whose known rule of warfare is an undistinguished
destruction, of all ages, sexes, and conditions.
In every stage of these oppressions, we have petitioned for redress, in the most humble terms; our repeated petitions have been
answered only by repeated injury. A prince, whose character is
thus marked by every act which may define a tyrant, is unfit to be
the ruler of a free people.
Nor have we been wanting in attention to our British brethren.
We have warned them, from time to time, of attempts made by
their legislature to extend an unwarrantable jurisdiction over us.
We have reminded them of the circumstances of our emigration
and settlement here. We have appealed to their native justice and
magnanimity, and we have conjured them, by the ties of our common
kindred, to disavow these usurpations, which would inevitably interrupt our connections and correspondence. They, too, have been
deaf to the voice of justice and consanguinity. We must, therefore, acquiesce in the necessity, which denounces our separation,
and hold them, as we hold the rest of mankind, enemies in war, in
peace, friends.
We, therefore, the representatives of the UNITED STATES
OF AMERICA, ini GENERAL CONGRESS assembled, appealing to the Supreme Judge of the World for the rectitude of our intentions, do, in the name, and by the authority of the good people
of these colonies, solemnly publish and declare, That these United
Colonies are, and of right ought to be, free anb Jnbepenbent,States; that they are absolved from all allegiance to the British
crown, and that all political connexion between them and the state
of Great Britain, is, and ought to be, totally dissolved; and that, as
FREE AND INDEPENDENT STATES, they have full power
to levy war, conclude peace, contract alliances, establish commerce,
and to do all other acts and things which INDEPENDENT
STATES may of right do. And, for the support of this declaration, with a firm reliance on the protection of bibN(~Q.




INDEPENDENCE.                     465
pumbi()mJ    (rN-e,   we mutually pledge to each other, our lives,
our fortunes, and our sacred honor.
The foregoing declaration was, by order of Congress, engrossed,
and signed by the following members:
JOHN HANCOCK.
New Hampshire.                 Massachusetts Bay.
JOSIAH BARTLETT,             SAMUEL ADAMS,
WILLIAM WHIPPLE,             JOHN ADAMS,
MATTHEW THORNTON.            ROBERT TREAT PAINE,
Rhode Island.              ELBRIDGE GERRY.
STEPHEN HOPKINS,              -Delaware.
WILLIAM ELLERY.               CAESAR RODNEY,
Connecticut.               GEORGE READ,
ROGER SHERMAN,                THOMAS M'KEAN.
SAMUEL HUNTINGTON,             Maryland.
WILLIAM WILLIAMS,            SAMUEL CHASE,
OLIVER WOLCOTT.              WILLIAM PACA,
VNew York.                  THOMAS STONE,
WILLIAM FLOYD,                CHARLES CARROLL, of Carrollton
PHILIP LIVINGSTON,              Virginia.
FRANCIS LEWIS,                GEORGE WYTHE,
LEWIS MORRIS.                RICHARD HENRY LEE,
New Jersey.                THOMAS JEFFERSON,
RICHARD STOCKTON,            BENJAMIN HARRISON,
JOHN WITHERSPOON,            THOMAS NELSON, jun.
FRANCIS HorPINSON,           FRANCIS LIGHTFOOT LEE,
JOHN HART,                    CARTER BRAXTON.
ABRAHAM CLARK.                 North Carolina.
Pennsylvania.               WILLIAM HOOPER,
ROBERT MORRIS,               JOSEPH HEWES,
BENJAMIN RUSH,                JOHN PENN.
BENJAMIN FRANKLIN,             South Carolina.
JOHN MORTON,                  EDWARD RITLEDGE,
GEORGE CLYMER,               THOMAS HEYWARD, jun.
JAMES SMITH,                  THOMAS LYNCH, jun.
GEORGE TAYLOR,               ARTHUR MIDDLETON.
JAMES WILSON,                   Georgia.
GEORGE Ross.                  BUTTON GWINNETT,
LYMAN HALL,
GEORGE WALTON.
20*




466                    INDEPENDENCE.
Resolved, That copies of the Declaration be sent to the several
assemblies, conventions, and committees, or councils of safety, and
to the several commanding officers of the continental troops; that
it be proclaimed in each of the United States, and at the head of
the army.




CHAPTER XVI.
CONFEDERATION.
COMMITTEE ON CONFEDERATION APPOINTED BEFORE THE DECLARATION WAS ADOPTED
-ITS REPORT-DEBATE ON THE PLAN OF CONFEDERATION-PROPORTION OF TAXATION-REMARKS OF MR. CHASE-JOHN ADAMS-MR. HARRISON-MR. PAYNEDR. WITHERSPOON-DEBATE ON STATE VOTES IN CONGRESS-REMARKS OF MR.
CHASE-DR. FRANKLIN-DR. WITHERSPOON-JOHN ADAMS-MR. HOPKINSMR. WILSON-ADOPTION OF THE CONFEDERATION-ITS VALUE.
WHILE the Declaration of Independence was still under the
consideration of Congress, certain necessary measures were taken
towards the forming of a plan of confederation among the colonies.
On the 11th of June 1776, it was resolved that a committee should
be appointed to propose and digest a form of confederation. On
the following day, it was resolved that the committee should consist
of a member from each colony, and it was appointed accordingly.
On the 12th of July, eight days after the adoption of the Declaration of Independence, the committee appointed to draw Articles
of Confederation made their report, and the subject was from time
to time debated in a committee of the whole, until the 15th of
November 1777, when a copy of the original draft, with a few verbal
amendments only, was by Congress ordered to be sent to the legislatures of all the United States to be by them considered, in order
that if it should meet their approbation they might authorize their
delegates to ratify the same in Congress. On the 17th of November
a circular letter was approved and ordered to be sent to the several
States, with copies of the Confederation; and on the 29th a committee was appointed to procure a translation of it into French, and to
report an address to the inhabitants of Canada &c. Thus the plan
of Confederation passed for the present from the hands of Congress




468                      CONFEDERATION.
to the States, with whom alone rested its final acceptance or rejection.
In Congress, as we learn from the valuable notes of Mr. Jefferson,
the discussion turned chiefly on those articles which determined the
proportion, or quota of money, which each State should furnish to the
common treasury, and the manner of voting in Congress.  The first
of these articles was, in the original draft, expressed in these
words.
" Art. XI. Al! charges of war, and all other expenses that shall be incurred
for the common defence, or general welfare, and allowed by the United States
assembled, shall be defrayed out of a common treasury, which shall be supplied
by the several colonies in proportion to the number of inhabitants of every age,
sex, and quality, except Indians not paying taxes, in each colony-a true amount
of which, distinguishing the white inhabitants, shall be triennially taken and
transmitted to the Assembly of the United States."
Mr. CHASE moved that the quotas should be fixed, not by the
number of the inhabitants of every condition, but by that of the
"' white inhabitants."  He admitted that taxation should always be
in proportion to property; that this was, in theory, the true rule;
but that, from a variety of difficulties, it was a rule which could never
be adopted in practice. The value of the property in every State
could never be estimated justly and equally. Some other measures
for the wealth of the state must, therefore, be devised, some standard
referred to, which would be more simple. He considered the number of inhabitants a tolerably good criterion of property, and that
this might always be obtained.  He therefore thought it the best
mode that we could adopt, with one exception only: he observed
that negroes are property, and, as such, cannot be distinguished from
the lands or personalities held in those States where there are few
slaves; that the surplus of profit which a Northern farmer is able to
lay by, he invests in cattle, horses &c., whereas a Southern farmer
lays out the same surplus in slaves. There is no more reason, therefore, for taxing the Southern States on the farmer's head, and on his
slave's head, than the Northern ones on their farmers' heads and the
heads of their cattle; that the method proposed would, therefore,
tax the Southern States on their numbers and their wealth conjunctly,
while the Northern would be taxed on numbers only; that negroes,




CONFEDERATION.                      469
in fact, should not be considered as members of the state more than
cattle, and that they have no more interest in it.
Mr. JOHN ADAMS observed, that the numbers of people are
taken by this article, as an index of the wealth of the State, and not
as subjects of taxation; that, as to this matter, it was of no consequence by what name you called your people, whether by that of
freemen or of slaves; that in some countries the laboring poor are
called freemen, in others they were called slaves; but that the difference as to the state was imaginary only. What matters it whether
a landlord, employing ten laborers on his farm, give them annually
as much money as will buy them the necessaries of life, or give them
those necessaries at short hand? The ten laborers give as much
wealth to the state, increase its exports as much in the one case as
the other.  Certainly five hundred freemen produce no more profits,
no greater surplus for the payment of taxes, than five hundred
slaves.  Therefore the state in which are the laborers called freemen,
should be taxed no more than that in which are those called slaves.
Suppose, by an extraordinary operation of nature or of law, one
half of the laborers of a state could, in the course of one night, be
transformed into slaves; would the state be made poorer or less
able to pay taxes? That the condition of the laboring poor in most
countries-that of the fishermen, particularly, of the Northern
States-is as abject as that of slaves. It is the number of laborers
which produces the surplus for taxation, and numbers, therefore,
indiscriminately, are the fair index to wealth; that it is the use of
the word "property" here in its application to some of the people
of the state which produces the fallacy.  How does the Southern
farmer procure slaves? Either by importation, or by purchase
from his neighbor. If he imports a slave, he adds one to the number of laborers in his country, and proportionally to its profits and
ability to pay taxes. If he buys from his neighbor, it is only a
transfer of a laborer from one farm to another, which does not
change the annual produce of the state, and therefore should not
change its tax; that if a Northern farmer works ten laborers on his
farm, he can, it is true, invest the surplus of ten men's labor in cattle;
but so may the Southern farmer working ten slaves; that a state of
one hundred thousand freemen can maintain no more cattle than




4'70                  CONFEDERATION.
one of one hundred thousand slaves, therefore they have no more
of that kind of property. That a slave may, indeed, from the custom of speech, be more properly called the wealth of his master,
than the free laborer might be called the wealth of his employer;
but as to the state, both were equally its wealth, and should therefore equally add to the quota of its tax.
Mr. HARRISON proposed, as a compromise, that two slaves
should be counted as one freeman.  He affirmed that slaves did not
do as much work as freemen, and doubted if two effected more than
one; that this was proved by the price of labor —the hire of a laborer in the Southern colonies being from ~8 to ~12, while in the
Northern it was generally ~24.
Mr. WILSON said that if this amendment should take place,
the Southern colonies would have all the benefit of slaves, whilst the
Northern ones would bear the burden; that slaves increase the
profits of a state, which the Southern States mean to take to themselves; that they also increase the burden of defence, which would,
of course, fall so much heavier on the Northern; that slaves occupy
the places of freemen and eat their food.  Dismiss your slaves, and
freemen will take their places. That other kinds of property were
pretty equally distributed through all the colonies;-there were as
many cattle, horses, and sheep in the North as the South, and South
as the North; but not so as to slaves; —that experience has shown
those colonies have been always able to pay most which have the
most inhabitants, whether they be black or white; and the practice
of the Southern colonies has always been to make every farmer
pay poll taxes upon his laborers, whether they be black or white.
He acknowledged that freemen work the most; but they consume
the most also. They do not produce a greater surplus for taxation.
The slave is neither fed nor clothed so expensively as a freeman.
Again, white women are exempted from labor generally, but negro
women are not.  In this, then, the Southern States had an advantage as the Article now stands. It has sometimes been said that
slavery is necessary because the commodities they raise would be
too dear for market if cultivated by freemen; but now it is said
that the labor of the slave is the dearest.
Mr. PAYNE urged the original resolutions of Congress, to
proportion the quotas of the States to the number of souls.




CONFEDERATION.                     471
Dr. WITHERSPOON was of opinion that the value of land
and houses was the best estimate of the wealth of a nation, and
that it was practicable to obtain such a valuation.  This is the
true barometer of wealth.  The one now proposed was imperfect
in itself, and unequal between the States.  It has been objected
that negroes eat the food of freemen, and therefore should be
taxed! horses also eat the food of freemen; therefore, they also
should be taxed.  It had been said, too, that in carrying slaves
into the estimate of the taxes the State is to pay we do no more
than those States themselves do, who always take slaves into the
estimate of the taxes the individual is to pay. But the cases were
not parallel.  In the Southern colonies slaves pervade the whole
colony; but they do not pervade the whole continent.  That as
to the original resolution of Congress to proportion the quotas according to the souls, it was temporary only, and related to the
moneys heretofore omitted; whereas we are now entering into a
new compact, and therefore stand on original ground.
The result of this interesting discussion was that on the 1st of
August the proposed amendment was rejected, and the original
Article adopted by the votes of New Hampshire, Massachusetts
Rhode Island, Connecticut, New York, New Jersey, and Pennsylvania, against those of Delaware, Maryland, Virginia, and North
and South Carolina. Georgia was divided. The arguments convinced none on either side, as the vote sufficiently proves.  The
Southern delegates, however, yielded gracefully to the desire of the
majority; nor was there much further opposition offered to the
Article on the part of the Southern legislators before whom the
plan of confederation was afterwards laid for ratification or rejection.
The other article was in these words:" Art. XVII. In determining questions each colony shall have one vote."
It was debated on July 30th and 31st, and on the 1st of
August.
Mr. CHASE observed  that this article was more likely to
divide the colonies than any other proposed in the draft then' under
consideration.  That the larger colonies had threatened they
would not confederate at all if their weight in Congress should not




472                   CONFEDERATION.
be equal to the numbers of people they added to the Confederacy;
while the smaller ones declared against a union if they did not
retain an equal vote for the protection of their rights.  That it
was of the utmost consequence to bring the parties together; as,
should we sever from each other, either no foreign power will ally
with us at all, or the different States will form different alliances,
and thus increase the horrors of those scenes of civil war and bloodshed which in such a state of separation and independence would
render us a miserable people. That our importance, our interests,
our peace, required that we should confederate, and that mutual
sacrifices should be made to effect a compromise of this difficult
question. He was of opinion the smaller colonies would lose their
rights if they were not, in some instances, allowed an equal vote;
and therefore, that a discrimination should take place among the
questions which should come before Congress.  That the smaller
States should be secured in all questions concerning life or liberty,
and the greater ones in all respecting property.  He therefore
proposed that in votes relating to money the voice of each colony
should be proportioned to the number of its inhabitants.
Dr. FRANKLIN thought that the votes should be so proportioned in all cases. He took notice that the Delaware counties had
bound up their delegates to disagree to this article.  He thought
it very extraordinary language to be held by any State that they
would not confederate with us unless we would let them dispose of
our money. Certainly if we vote equally we ought to pay equally;
but the smaller States will hardly purchase the privilege at this
price.  That had he lived in a State where the representation,
originally equal, had become unequal by time and accident, he
might have submitted rather than disturb government; but that
we should be very wrong to set out in this practice when' it is in
our power to establish what is right.  That at the time of the
union between England and Scotland, the latter had made the
objection which the smaller States now do; but experience had
proved that no unfairness had ever been shown them; that their
advocates had prognosticated that it would again happen as in
times of old that the whale would swallow Jonah; but he thought
the prediction reversed in event, and that Jonah had swallowed the




CONFEDERATION.                      4 7 3
whale; for the Scotch had, in part, got possession of the government, and gave laws to the English.  He reprobated the original
agreement of Congress to vote by colonies, and therefore was for
their voting in all cases according to the number of taxables.
Dr. WITHERSPOON  opposed every alteration of the Article.
All men admitted  that a confederacy is necessary.   Should
the idea get abroad that there is likely to be no union among
us, it will damp the minds of the people, diminish the glory of our
struggle, and lessen its importance; because it will open to our
view future prospects of war and dissension among ourselves. If an
equal vote be refused, the smaller States will become vassals to the
larger; and all experience has shown that the vassals and subjects
of free states are the most enslaved.  He instanced the helots of
Sparta and the provinces of Rome.  He observed that foreign
powers discovering this blemish, would make it a handle for disengaging the smaller States from so unequal a confederacy. That
the colonies should, in fact, be considered as individuals; that as
such, in all disputes, they should have an equal vote; and that they
are now collected as individuals making a bargain with each other,
and of course had a right to vote as individuals.  That in the
East India Company they voted by persons, and not by their proportions of stock. That the Belgic Confederacy voted by provinces. That in questions of war the smaller States were as much
interested as the larger, and therefore should vote equally; and
indeed that the larger States were more likely to bring war on
the Confederacy in proportion as their frontier was more extensive.
He admitted that equality of representation was an excellent principle, but then it must be of things which are coordinate; that is,
of things similar and of the same nature; that nothing relating to
individuals could ever come before Congress; nothing but what
would respect colonies.  He distinguished between an incorporating
and a federal union.  The union of England and Scotland was an
incorporating one; yet Scotland had suffered by that union; for
that its inhabitants were drawn from it by the hopes of places and
employments; nor was it an instance of equality of representation,
because, while Scotland was allowed nearly a thirteenth of representation, they were to pay only one-fortieth of the land tax.  He




474                   CONFEDERATION.
expressed his views that in the present enlightened state of men's
minds we might expect a lasting confederacy, if it was founded on
fair principles.
IMr. JOHn ADAMS advocated the voting in proportion to numbers. He said, that we stand here as the representatives of the
people; that in some States the people are many, in others they
are few; that therefore their vote here should be proportioned to
the numbers from  whom it comes.  Reason, justice, and equity
never had justice enough on the face of the earth to govern the
councils of men. It is interest alone which does it, and it is interest
alone which can be trusted; that therefore the interests within
doors should be the mathematical representatives of the interests
without doors.
Besides the fallacy of Mr. Adams' reasoning which assumed
that members of the Continental Congress were representatives of
the people at large instead of what they actually were, representatives of their respective States, he argued against the individuality
of States themselves, and maintained that the object of confederation was to obliterate State lines and distinctions so as to incorporate all under one consolidated government.
He said that the individuality of the colonies is a mere sound.
Does the individuality of a colony increase its wealth or numbers?
If it does, pay equally.  If it does not add weight in the scale of
the confederacy, it cannot add to their rights nor weigh in argument.  A has ~50, B ~500, C ~1,000 in partnership.  Is it just
that they should equally dispose of the moneys of the partnership?
It has been said we are independent individuals making a bargain
together.  The question is not what we are now, but what we
ought to be when our bargain shall be made.  The confederacy is
to make us one individual only.  It is to form us, like separate
pieces of metal, into one common mass. We shall no longer, retain
our separate individuality, but become a single individual as to all
matters submitted to the confederacy.  Therefore all reasons,
which prove the justice and expediency of equal representation in
other assemblies, hold good here.  It had been objected that a
proportional vote would endanger the smaller States. He answered
that an equal vote would endanger the larger.  Virginia, Pennsyl



CONFEDIERATION.                     4 75
vania and Massachusetts were the three greater colonies.  Consider
their distance, their difference of products, of interest, and of manners, and it was apparent they can never have an interest or an
inclination to combine for the oppression of the smaller; that the
smaller would naturally divide on all questions with the larger;
that Rhode Island, from  its relation, similarity and intercourse,
would generally pursue the same objects with Massachusetts; Jersey, Delaware, and Maryland, with Pennsylvania.
Mr. HOPKINS observed  that there were four larger, four
smaller and four middle sized colonies.  That the four largest
would contain more than half the inhabitants of the confederating
States, and therefore would govern the others as they should please.
That history affords no instance of such a thing as equal representation. The Germanic body vote by states; the IIelvetic body does
the same; and so does the Belgic Confederacy.  That too little is
known of the ancient confederations to say what was their practice.
Mr. WILSON went beyond even Mr. Adams in his advocacy
of consolidation, maintaining that the colonies, by the mere sending
of delegates to Congress had already sacrificed their individuality.
As to those matters, he said, which are referred to Congress, we
are not so many States; we are one large State.  We lay aside our
individuality whenever we come here.
The views of Mr. Adams and Mr. Wilson did not meet the
approbation of Congress, and the article as it stood was triunmphantly adopted.
The draft of the Confederate Constitution was presented, as we
have before observed, on the 12th of July, 1776, and debated from
time to time until the 15th of November, 1777, when it was approved in Congress and ordered to be transmitted to the States for
their consideration.   On the 26th of June a form of ratification
was adopted and engrossed on parchment for signature by the
delegates acting by authority of their respective States.  On subsequent examination, however, it was found that only New Hampshire, New  York, Virginia, and North Carolina accepted the
Articles as they stood, with a proviso on the part of New York
that the same should not be binding on it until all the other States
in the Union should have ratified them  also.  Massachusetts,




476                   CONFEDERATION.
Rhode Island, Connecticut, New Jersey, Pennsylvania, Maryland,
and South Carolina proposed alterations, additions or amendments,
which were all considered by Congress, and all rejected.  The
delegate from Georgia had received no instructions from his constituents, but had no doubt they would ratify the Articles of Confederation without amendment.  Delaware and North Carolina,
having no delegates present, made no formal report; but the
unanimous accession of North Carolina to the confederation had
been already signified by her Governor Caswell so early as the 26th
of April. On the 9th of July, 1778, the ratification of the Articles
of Confederation was signed on the part of their respective States
by the delegates from New Hampshire, Massachusetts Bay, Rhode
Island and Providence Plantations, Connecticut, New York, Pennsylvania, Virginia and South Carolina, acting under the powers
vested in them.  The delegates from New Jersey, Delaware, and
Maryland informed Congress that they had not been empowered to
ratify and sign; North Carolina and Georgia were not represented.
In this critical condition of affairs a letter was addressed to the
States which had not authorized their delegates to ratify the confederation, urging them " to conclude the glorious compact which
by uniting the wealth, strength, and councils of the whole, might
bid defiance to external violence and internal dissensions whilst it
secured the public credit at home and abroad."   On the 21st of
July the ratification was signed by the delegates of North Carolina; and on the 24th by those of Georgia.  The delegates of New
Jersey, having received their powers, affixed their signatures on
the 26th of November following.  On the 5th of May, 1779, Mr.
Dickinson and MIr. Vandyke signed the Articles of Confederation
in behalf of the State of Delaware, Mr. M'Kean having previously signed them on the 12th of February, at which time he had
produced a power to that effect.  Maryland had instructed her
delegates not to agree to the Confederation until an equitable settlement should be made concerning Western lands; but on the
30th of January, 1781, finding that the enemies of the country took
advantage of the circumstance to disseminate opinions of an
ultimate dissolution of the Union, the Legislature of the State empowered their delegates to ratify and subscribe the Articles;




CONFEDERATION.                     477
which was accordingly done on the ist of March, 1781, and thus
the ratification was completed.  On the next day Congress assembled under the new powers committed to it by the Articles of Confederation.
Thus, at length, after nearly five years of continual debate and
difficulty, was consummated the " Perpetual Union' of the States.
It lasted practically two years, and nominally about eight.  It did
not materially add to the efficiency of government during the war
with England; nor did it in any great degree strengthen the bond
of union between the States.  Its importance, nevertheless, is not
to be lightly estimated.  Had the colonies achieved their independence with no closer tie between them than the military alliance
rendered necessary by a foreign invasion, there is little reason to
believe that they would ever after have united.  Hence they would
have become in peace totally independent; and the usual animosities of petty states would have been likely to embroil them with
each other in continual feuds, such as disturbed the petty states of
Italy in the middle ages.  Neither after nor before the war could
the States be induced to renounce their separate individuality or
independence; and all movements towards a union were suspected
by the smaller States of tending to consolidated power. The confederation, therefore, which demonstrated the possibility of union
without consolidation, and showed, however imperfectly, the capacity
of the federative principle to meet the exigencies of their situation,
was of immense importance to the future of the States.  It was in
fact a rough draft of the application of the Anglo-Saxon system to
the circumstances of the colonies; admitting the necessity of union,
but equally asserting separate sovereignty as the only possible or
even safe foundation of the union. Its model was, in this view,
of inestimable value to the framers of the later Constitution; showing
them at once the fundamental principle of a federal republic, and
the difficulties to be apprehended in its operation.




TO ALL TO WHOrM THESE PRESENTS SHALL COME,
WE, the undersigned, Delegates of the States affixed to our names,
send greeting:
WHIEREAS the delegates of the United States of America, in Congress assembled, did, on the fifteenth day of November, in the year
of our Lord one thousand seven hundred and seventy-seven, and
in the second year of the Independence of America, agree to certain Articles of Confederation and Perpetual Union, between the
states of New  Hampshire, Massachusetts Bay, 1ihode Island and
Providence Plantations, Connecticut, New York, New Jersey)
Pennsylvania, Delaware, Maryland, Virginia, North  Carolina,
South Carolina, and Georgia, in the words following, viz.: —
Articles of Confederation and Perpettal Union, between the States of
New ffampshire, MJassachusetts Bay, ]Rhode Island and Providlence
Plantations, Connecticut, NeJw York, New Jersey, Pennsylvania,
lDelaware, _iIaryland, Virginia, North Carolina, South Carolina,
and Georgia.
ARTICLE. 1. The style of this confederacy shall be " The United States of America."
AnT. 2. Each state retains it sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by
this Confederation expressly delegated to the United States in
Congress assembled.
ART. 3. The said states hereby severally enter into a firm
league of friendship with each other for their common defence, the
security of their liberties, and their mutual and general welfare;
binding themselves to assist each other against all force offered to,




CONFEDERATION.                      4'79
or attacks made upon, them, or any of them, on account of religion,
sovereignty, trade, or any other pretence whatever.
ART. 4. The better to secure and perpetuate mutual friendship
and intercourse among the people of the different states in this
Uniotl, the free inhabitants of each of these states-paupers, vagabolids, and fugitives from justice, excepted-shall be entitled to all
privileges and immunities of free citizens in the several states; and
the people of each state shall have free ingress and regress to and
from any other state, and shall enjoy therein all the privileges of
trade and commerce, subject to the same duties, impositions, and
restrictions, as the inhabitants thereof, respectively, provided that
such restrictions shall not extend so far as to prevent the removal
of property imported into any state from any other state, of which
the owner is an inhabitant; provided also, that no imposition, duty,
or restriction, shall be laid by any state on the property of the
United States, or either of them.
If any person, guilty of, or charged with, treason, felony, or
other high misdemeanor, in any state, shall flee from justice, and be
found in any of the United States, he shall, upon demand of the
governor or executive power of the state from which he fled, be
delivered up, and removed to the state having jurisdiction of his
offence.
Full faith and credit shall be given, in each of these states, to
the records, acts, and judicial proceedings, of the courts and magistrates of every other state.
ART. 5. For the more convenient management of the general
interests of the United States, delegates shall be annually appointed
in such manner as the legislature of each state shall direct, to meet
in Congress on the first Monday in November, in every year, with
a power reserved to each state, to recall its delegates, or any of
them, at any time within the year, and to send others in their stead
for the remainder of the year.
No state shall be represented in Congress by less than two, nor
by more than seven members;' and no person shall be capable of
being a delegate for more than three years in any term of six years;
nor shall any person, being a delegate, be capable of holding any
office under the United States, for which he, or another for his
benefit, receives any salary, fees, or emolument of any kind.




480                   CONFEDERATION.
Each state shall maintain its own delegates in a meeting of the
states, and while they act as members of the committee of the
States.
In determining questions in the United States in Congress
assembled, each state shall have one vote.
Freedom of speech and debate in Congress shall not be impeached or questioned in any court or place out of Congress; and
the members of Congress shall be protected in their persons from
arrests and imprisonments, during the time of their going to and
from, and attendance on, Congress, except for treason, felony or
breach of the peace.
ART. 6. No state, without the consent of the United States in
Congress assembled, shall send any embassy to, or receive any embassy from, or enter into any conference, agreement, alliance, or
treaty, with any king, prince, or state; nor shall any person holding
any office of profit or trust under the United States, or any of them,
accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state; nor shall the United
States in Congress assembled, or any of them, grant any title of
nobility.
No two or more states shall enter into any treaty, confederation,
or alliance whatever between them, without the consent of the
United States in Congress assembled, specifying accurately the
purposes for which the same is to be entered into, and how long it
shall continue.
No state shall lay any imposts or duties, which may interfere
with any stipulations in treaties entered into, by the United States
in Congress assembled, with any king, prince, or state, in pursuance of any treaties already proposed by Congress to the courts of
France and Spain.
No vessel of war shall be kept up in time of peace by any state,
except such number only as shall be deemed necessary, by the United
States in Congress assembled, for the defence of such state, or its
trade; nor shall any body of forces be kept up by any state, in time
of peace, except such number only as, in the judgment of the United States in Congress assembled, shall be deemed requisite to
garrison the forts necessary for the defence of such state; but every




CONFEDERATION.                      481
state shall always keep up a well-regulated and disciplined militia,
sufficiently armed and accoutred, and shall provide, and have constantly ready for use, in public stores, a due number of field-pieces
and tents, and a proper quantity of arms, ammunition, and camp
equipage.
No state shall engage in any war without the consent of the
United States in Congress assembled, unless such state be actually
invaded by enemies, or shall have received certain advice of a
resolution being formed by some nation of Indians to invade such
state, and the danger is so imminent as not to admit of a delay till
the United States in Congress assembled can be consulted; nor
shall any state grant commissions to any ships or vessels of war, nor
letters of marque or reprisal, except it be after a declaration of war
by the United States in Congress assembled, and then only against
the kingdom or state, and the subjects thereof, against which war
has been so declared, and under such regulations as shall be established by the United States in Congress assembled, unless such
state be infested by pirates; in which case, vessels of war may be
fitted out for that occasion, and kept so long as the danger shall
continue, or until the United States in Congress assembled shall
determine otherwise.
ART. 7. When land forces are raised by any state for the common defence, all officers of, or under the rank of colonel shall be
appointed by the legislature of each state, respectively, by whom
such forces shall be raised, or in such manner as such state shall
direct; and all vacancies shall be filled up by the state which first
made the appointment.
ART. 8. All charges of war, and all other expenses that shall be
incurred for the common defence or general welfare, and allowed
by the United States in Congress assembled, shall be defrayed out
of a common treasury, which shall be supplied by the several States,
in proportion to the value of all land, within each state, granted to
or surveyed for any person, as such land, and the buildings and improvements thereon, shall be estimated, according to such mode as
the United States in Congress assembled shall, from time to time,
direct and appoint.
The taxes for paying that proportion shall be laid and levied
21




482                     CONFEDERATION.
by the authority and direction of the legislatures of the several
states, within the time agreed upon by the United States in Congress assembled.
ART. 9. The United States in Congress assembled shall have
the sole and exclusive right and power of determining on peace and
war, except in the cases mentioned in the sixth article-of sending
and receiving ambassadors-entering into treaties and alliances;
provided that no treaty of commerce shall be made whereby the
legislative power of the respective states shall be restrained from
imposing such imposts and duties on foreigners as their own people
are subjected to, or from prohibiting the exportation or importation
of any species of goods or commodities whatsoever-of establishing
rules for deciding, in all cases, what captures, on land or water,
shall be legal, and in what manner prizes taken by land or naval
forces in the service of the United States shall be divided or appropriated-of granting letters of marque and reprisal in times of
peace-appointing courts for the trial of piracies and felonies committed on the high seas, and establishing courts for receiving and
determining finally appeals in all cases of capture; provided that
no member of Congress shall be appointed a judge of any of the
said courts.
The United States in Congress assembled shall also be the last
resort on appeal in all disputes and differences now subsisting, or that
hereafter may arise, between two or more states,'concerning boundary, jurisdiction, or any other cause whatever; which authority shall
always be exercised in the manner following: Whenever the legislative or executive authority, or lawful agent, of any state in controversy with another, shall present a petition to Congress, stating
the matter in question, and praying for a hearing, notice thereof
shall be given by order of Congress to the legislative or executive
authority of the other state in controversy, and a day assigned for
the appearance of the parties, by their lawful agents,-who shall
then be directed to appoint, by joint consent, commissioners or
judges to constitute a court for hearing and determining the matter
in question; but if they cannot agree, Congress shall name three
persons out of each of the United States,and from the list of such persons, each party shall alternately strike out one, the petitioners begin



CONFEDERATION.                      483
ning, until the number shall be reduced to thirteen; and from that
number not less than seven nor more than nine names, as Congress
shall direct, shall, in the presence of Congress, be drawn out by
lot; and the persons whose names shall be so drawn, or any five of
them, shall be commissioners or judges, to hear and finally determine the controversy, so always as a major part of the judges, who
shall hear the cause, shall agree in the determination; and if either
party shall neglect to attend at the day appointed, without showing
reasons which Congress shall judge sufficient, or being present shall
refuse to strike, the Congress shall proceed to nominate three persons out of each state, and the secretary of Congress shall strike in
behalf of such party absent or refusing; and the judgment and sentence of the court, to be appointed in the manner before prescribed,
shall be final and conclusive; and if any of the parties shall refuse
to submit to the authority of such court, or to appear or defend
their claim or cause, the court shall nevertheless proceed to pronounce sentence or judgment, which shall, in like manner, be final
and decisive-the judgment or sentence, and other proceedings,
being in either case transmitted to Congress, and lodged among the
acts of Congress for the security of the parties concerned; provided
that every commissioner, before he sits in judgment, shall take an
oath, to be administered by one of the judges of the supreme or
superior court of the state where the cause shall be tried, " well and
truly to h:ar and determine the matter in question, according to the best
of hisjudgment, without favor, affection, or hope of reward: " provided,
also, that no state shall be deprived of territory for the benefit of
the United States.
All controversies concerning the private right of soil, claimed
under different grants of two or more states, whose jurisdiction, as
they may respect such lands, and the states which passed such
grants, are adjusted, the said grants, or either of them, being at the
same time claimed to have originated antecedent to such settlement
of jurisdiction, shall, on the petition of either party to the Congress
of the United States, be finally determined, as near as may be, in
the same manner as is before prescribed for deciding disputes respecting territorial jurisdiction between different states.
The United States in Congress assembled shall also have the




484                    CONFEDERATION.
sole and exclusive right and power of regulating the alloy and
value of coin struck by their own authority, or by that of the respective states; fixing the standard of weights and measures throughout the United States; regulating the trade and managing all affairs
with the Indians not members of any of the states, provided that
the legislative right of any state within its own limits be not
infringed or violated; establishing and regulating post-offices from
one state to another throughout all the United States, and exacting
such postage on the papers passing through the same as may be
requisite to defray the expenses of the said office; appointing all
officers of the land forces in the service of the United States, excepting regimental officers; appointing all the officers of the naval
forces, and commissioning all officers whatever in the service of the
United States; making rules for the government and regulation of
the said land and naval forces, and directing their operations.
The United States in Congress assembled shall have authority
to appoint a committee to sit in the recess of Congress, to be
denominated "a committee of the states," and to consist of one
delegate from each state; and to appoint such other committees and
civil officers as may be necessary for managing the general affairs
of the United States under their direction-to appoint one of their
number to preside, provided that no person be allowed to serve in
the office of president more than one year in any term  of three
years —to ascertain the necessary sums of money to be raised for the
service of the United States, and to appropriate and apply the same
for defraying the public expenses-to borrow money or emit bills on
the credit of the United States, transmitting, every half year, to the
respective states, an account of the sums of money so borrowed or
emitted-to build and equip a navy-to agree upon the number
of land forces, and to make requisitions from each state for its
quota, in proportion to the number of white inhabitants in such
state; which requisitions shall be binding; and thereupon the legislature of each state shall appoint the regimental officers, raise the
men, and clothe, arm, and equip them in a soldier-like manner, at
the expense of the United States; and the officers and men so
clothed, armed, and equipped, shall march to the place appointed,
and within the time agreed on by the United States in Congress




CONFEDERATION.                     485
assembled: but if the United States in Congress assembled shall,
on consideration of circumstances, judge proper that any state
should not raise men, or should raise a smaller number than its
quota, and that any other state should raise a greater number of
men than the quota thereof, such extra number shall be raised,
officered, clothed, armed, and equipped, in the same manner as the
quota of such state, unless the legislature of such state shall judge
that such extra number cannot be safely spared out of the same; in
which case they shall raise, officer, clothe, arm, and equip, as many
of such extra number as they judge can be safely spared. And the
officers and men so clothed, armed, and equipped, shall march to
the place appointed, and within the time agreed on by the United
States in Congress assembled.
The United States in Congress assembled shall never engage in
a war; nor grant letters of marque and reprisal in time of peace;
nor enter into any treaties or alliances; nor coin money; nor regulate the value thereof; nor ascertain the sums and expenses necessary
for the defence and welfare of the United States, or any of them;
nor emit bills; nor borrow money on the credit of the United
States; nor appropriate money; nor agree upon the number of
vessels of war to be built or purchased, or the number of land or
sea forces to be raised; nor appoint a commander-in-chief of the
army or navy,-unless nine states assent to the same; nor shall a
question on any other point, except for adjourning from day to day,
be determined, unless by the votes of a majority of the United
States in Congress assembled.
The Congress of the United States shall have power to adjourn
to any time within the year, and to any place within the United
States, so that no period of adjournment be for a longer duration
than the space of six months; and shall publish the journal of their
proceedings monthly, except such parts thereof, relating to treaties,
alliances, or military operations, as in their judgment require
secrecy; and the yeas and nays of the delegates of each state on
any question shall be entered on the journal, when it is desired by
any delegate; and the delegates of a state, or any of them, at his or
their request, shall be furnished with a transcript of the said jour



486                   CO.NFEDERATION.
nal, except such parts as are above excepted, to lay before the
legislatures of the several states.
ART. 10. The committee of the states, or any nine of them,
shall be authorized to execute, in the recess of Congress, such of
the powers of Congress as the United States in Congress assembled,
by the consent of nine states, shall, from time to time, think expedient to vest them with; provided that no power be delegated to
the said committee, for the exercise of which, by the Articles of
Confederation, the voice of nine states in the Congress of the United States assembled is requisite.
ART. 11. Canada, acceding to this Confederation, and joining
in the measures of the United States, shall be admitted into, and
entitled to, all the advantages of this union; but no other colony
shall be admitted into the same unless such admission be agreed to
by nine States.
ART. 12. All bills of credit emitted, moneys borrowed, and debts
contracted, by or under the authority of Congress, before the
assembling of the United States in pursuance of the present Confederation, shall be deemed and considered as a charge against the
United States, for payment and satisfaction whereof the said United
States, and the public faith, are hereby solemnly pledged.
ART. 13. Every state shall abide by the determination of the
United States in Congress assembled, on all questions which, by
this Confederation, are submitted to them. And the Articles of
this Confederation shall be inviolably observed by every state, and
the union shall be perpetual; nor shall any alteration, at any time
hereafter, be made in any of them, unless such alteration be agreed
to in a Congress of the United States, and be afterwards confirmed
by the legislature of every state.
RATIFICATION.
And whereas it has pleased the Great Governor of the world
to incline the hearts of the legislatures we respectively represent in
Congress, to approve of and to authorize us to ratify the said Articles of Confederation and Perpetual Union: Know ye, That we, the
undersigned delegates, by virtue of the power and authority to us




CONFEDERATION.                           4 87
given for that purpose, do, by these presents, in the name and in behalf
of our respective constituents, fully and entirely ratify and confirm
each and every of the said Articles of Confederation and Perpetual
Union, and all and singular the matters and things therein contained; and we do further solemnly plight and engage the faith of
our respective constituents, that they shall abide by the determinations of the United States in Congress assembled, on all questions
which, by the said Confederation, are submitted to them; and that
the articles thereof shall be inviolably observed by the states we respectively represent; and that the union shall be perpetual.
In witness whereof, we have hereunto set our hands in Congress. Done at
Philadelphia, in the state of Pennsylvania, the ninth day of July, in the
year of our Lord one thousand seven hundred and seventy eight, and in the
third year of the Independence of America.
On the part and behalf of the state of NVew Hampshire.
Josiah Bartlett,               John Wentworth, Jun., Aug. 8. 1778.
On the part and behalf of the state of Mfassachusetts Bay.
John Hancock,                  Francis Dana,
Samuel Adams,                  James Lovell,
Elbridge Gerry,                Samuel Holten.
On the part and behalf of the State of Rhode Island and Providence Plantations.
William Ellery,                John Collins.
Henry Marchant,
On the part and behalf of the state of Connecticut.
Roger Sherman,                 Titus Hosmer,
Samuel Huntington,             Andrew Adams.
Oliver Wolcott,
On the part and behalf of the state of New York.
Jas. Duane,                    Wm. Duer,
Fra. Lewis,                    Gouv. Morris.
On the part and behalf of the state of New Jersey.
Jno. Witherspoon,              Nath. Scudder, Nov. 26, 1778.
On the part and behalf of the state of Pennsylvania.
Robert Morris,                  William Clingan,
Daniel Roberdeau,               Joseph Reed, 22d July, 17'78.
Jona. Bayard Smith,
On the part and behalf of the state of Delaware.
Thos. M'Kean, Feb. 13,'79,     Nicholas Van Dyke,
John Dickinson, May' 5,'79.




488                      CONFEDERATION.
On the part and behalf of the state of Maryland
John Hanson, March 1,'81,     Daniel Carroll, do.
On the part and behalf of the state of Virginia.
Richard Henry Lee,             Jno. Harvie,
John Banister,                Francis Lightfoot Lee.
Thomas Adams,
On the part and behalf of the state of North Carolina.
John Penn, July 21,'78,      Corns. Harnett.
Jno. Williams,
On the part and behalf of the state of South Carolina.
Henry Laurens,                Richard Hutson,
William Henry Drayton,        Thos. Heyward, Jun.
Jno. Mathews,
On the part and behalf of the state of Georgia.
Jno. Walton, July 24,'78,    Edw'd Langworthy.
Edw'd Telfair,




CHAPTER XVII.
ADOPTION OF THE CONSTITUTION.
CIRCUMSTANCES UNDER WHICH IT WAS ADOPTED-CONSTITUTIONAL POSITION OF THE
COLONIES AFTER THE DECLARATION-THAT OF LIMITED OR CONSTITUTIONAL
GOVERNMENTS —INDEPENDENT OF EACH OTHER-YET UNITED-DISTINCTION
BETWEEN A CONSOLIDATED AND A FEDERATIVE UNION-WEAKNESS OF THE CONFEDERATION-FINANCIAL DIFFICULTIES-DIFFICULTY IN MAKING TREATIES
OF FOREIGN ALLIANCE —.PROPOSITION IN CONGRESS-CALL OF VIRGINIA-CONVENTION AT ANNAPOLIS-ITS- REPORT TO THE LEGISLATURES-CONGRESS CALLS
UPON THE STATES TO SEND DELEGATES TO A CONVENTION-IMPORTANCE OF THE
PHRASEOLOGY OF THE CALL-ASSEMBLING OF THE CONVENTION AT PHILADELPHIA-PARTIES IN THE CONVENTION-THE MONARCHICAL PARTY-THE LARGE
STATE PARTY —THE STATE RIGHTS PARTY-PROPOSITIONS OF MR. RANDOLPHOF MR. CHARLES PINCKNEY —OF MR. PATTERSON-OF COLONEL HAMILTONTWENTY-TIIREE RESOLUTIONS OF CONVENTION WITH DATES OF THEIR ADOPTION
-DEBATES ON THE TIIIRD AND FOURTH RESOLUTIONS FROM LUTHER MARTINEQUAL DIVISION OF THE CONVENTION ON THE SUBJECT OF REPRESENTATION IN
CONGRESS-CONFERENCE-COMPROMISE-DRAFT OF CONSTITUTION REPORTEDOMISSION OF THE WORD NATIONAL —THE REASON-THE REVISED DRAFT-OMISSION OF -THE NAMES OF STATES IN THE PREAMBLE-THE REASON-SECESSION
OF STATES FROM THE CONFEDERATION-UNANIMOUS ADOPTION OF THE CONSTITUTION IN CONVENTION-ITS RECEPTION BY CONGRESS-RATIFICATIONS BY
THE STATES-ACT FOR PUTTING IT IN OPERATION-WASHINGTON ELECTED
PRESIDENT-IMPERFECTION OF THE CONSTITUTION AS ADOPTED-DECLARATIONS
MADE AND AMENDMENTS OFFERED BY THE STATES-MASSACHUSETTS -NEW
HAMPSHIRE-SOUTH CAROLINA-VIRGINIA-NEW  YORK-RHODE  ISLANDTWELVE AMENDMENTS PROPOSED BY CONGRESS-TEN OF THEM ACCEPTED BY
THE STATES-VALUE OF THE AMENDMENTS-THE ELEVENTH AMENDMENT-THE
TWELFTH —CONCLUDING OBSERVATIONS.
As we are now about to enter on the history of the adoption
of the Constitution, it is well that we should bear in mind the
circumstances under which it was adopted.
From the date of the Declaration of Independence, when the
21*




490           ADOPTION OF THE CONSTITUTION.
final separation of the colonies from the mother country was pro.
claimed to the world, each individual colony enjoyed complete selfgovernment. Whatever portion of the sovereign authority in these
communities may have been rightfully or wrongfully exercised by
Britain, was at once transferred to the communities themselves.
Yet not in such a way as to set the liberty or rights of the individual citizen at the mercy of a mere majority of his fellow citizens.  The fundamental law of the colonies was still the common
law of England. The rights and liberties for which the colonies
had long been struggling and for usurpations against which they
had declared the king of England to have forfeited his sovereignty
over them, were the rights and liberties of English subjects. By
the settlement of undivided sovereignty in the colonies themselves, the existing law was not repealed, but rather confirmed and
vindicated from invasions by assumed authority. The rights and
liberties of individuals, as guaranteed by the great documents and
charters of the English Constitution, were not abrogated, but maintained and reasserted with more pressing instance. Hence the
sovereignty of the colonies after the declaration of their independence was limited in its exercise by the same restrictions as the
sovereign power in England; the rights of individuals were protected by the same inestimable constitutions as before; and the
majority in each separate colony could lawfully pass no act contravening their provisions. It is an error, therefore, to imagine that
the several colonies were ever without established laws or limitations to the exercise of sovereign power. They had from the moment of their independence actually what, from their first establishment, they had demanded rightfully, the whole English Constitution so far as it was applicable in their situation. It cannot be
too frequently repeated that the State governments, whether in the
hands of popular majorities or otherwise constituted, were from
the first limited governments. Nor is it too much to say that if
any constitutions had been subsequently adopted by majorities, or
if any constitutions should ever hereafter be adopted by majorities in any of these States, setting at nought the franchise of the
citizen as it then stood under the English Constitution, they would
be mere usurpations, and their successful establishment would be




ADOPTION OF THE CONSTITUTION.              491
revolution. Magna Charta and the English common law are still
the fundamental law in every State within the territory originally
belonging to the thirteen States.  State constitutions are in fact
only express applications of the principles of Magna Charta and the
common law to novel circumstances. Did they abrogate the wise
provisions of these fundamental laws they would be null and void,
or at best revolutionary; for they would be subversive of the
vested rights of individuals wrung from and conceded by our ancient sovereigns in England, and maintained here by a war of
years.
The colonies, then, possessed from the moment of their independence governments of law. It is to be further observed that
these were independent of each other. Between them there was
no connection whatsoever. Each had been immediately connected
with the mother country, from which it received its charter and
the constitution of its separate provincial government, and such
intercolonial connections as existed were entirely voluntary, conveying to none a right of governing or controlling another.  The
colonies had been separately organized; they became separately independent, enjoying separate sovereignty over separate territories;
the new fact of separation from England made no change in their
relations to each other; consequently they were still as independent of each other as they had been hitherto.
Yet in every step towards independence of the mother country
they had been united.  The first assembly of delegates "chosen
and appointed by the several colonies and provinces in North
America to take into consideration the actual situation of the same,
and the differences subsisting between them and Great Britain,"
was immediately known as the congress of delegates of the United
Colonies. The Declaration of Independence professed to emanate
from " the representatives of the United States oJ America; " and
it affirmed aud published to the world that " these United Colonies
are, and of right ought to be, free and independent States."  And
the first article of the subsequent confederation was in these words:
" Article I. The style of this confederacy shall be'The United
States of America.'"  From  the first cooperation of the colonies
in an attempt to settle their difficulty with the British Government




492           ADOPTION OF THE CONSTITUTION.
to the present day, their combination has been known as "' The
Union." Originally a mere combination for mutual advice on an
occasion of peculiar perplexity, it became successively a defensive
alliance, a confederation of independent powers, and a federal republic; but in every instance it was called in popular speech " The
Union." This is a circumstance of no small value in correcting
the impression-unfortunately too common-that the notion of
union necessarily includes that of consolidation. The Union of
England and Scotland is a consolidated union, merging as it does
two separate kingdoms into one united or consolidated kingdom.
Even this union, according to Blackstone, is not indissoluble; but
would be resolved into its original elements or at least greatly endangered by any act which should abrogate or disregard the original conditions under which it was constituted, without," the mutual consent of both." Whence it appears that even a consolidated union does not in any true sense destroy the individuality of
the parties to it; and that the surrender of particular functions of
individuality is dependent as to its perpetuity on an observance between the parties " of those points which, when they were separate
and independent nations, it was mutually stipulated should be' fundamental and essential conditions of the union.'  (BLACKSTONE,
Corn. i. 97.) But the notion of consolidation has no place in the
American Union. Nothing of the sort was dreamed of when the
first congress of delegates assembled to take common counsel in
Carpenter's Hall, Philadelphia.  At that time the colonies were
still British dependencies; they had formed no bond of union with
each other; they were united only by the influence of common
dangers, sympathies, and resolutions; it was this influence alone
that made their " Union; " but it was a true union for all that.
There has never been a truer union than when the delegates of the
United Colonies in Philadelphia " locked the doors, enjoining by
word of honor secrecy on the members; and all the while the people from New Hampshire to Georgia waited quietly, willingly, resolutely prepared to do, not the bidding of that congress, but to accept its conclusions as the voice of thirteen nations."  Nor was there
any thought of consolidation in the Declaration of Independence,
which affirmed that in their individual capacities as " free and in



ADOPTION OF THE CONSTITUTION.               493
dependent States " —not as a free and independent state, or a free
and independent people-they had " full power to levy war, conclude peace, and contract alliances." It was as individual States
and at different times that they authorized this declaration to be
made; and it was in right of their individual power " to contract
alliances" that they cooperated in the war of independence, and
adopted, while the war was being waged, the Articles of Confederation and Perpetual Union. Yet, without one thought of consolidation, was there ever a more perfect union -than existed when
the colonies, conscious of their mutual independence, "appealed
to the Supreme Judge of the world for the rectitude of their intentions," and "for the support of their declaration, with a firm
reliance on the protection of Divine Providence, mutually pledged
to each other their lives, their fortunes, and their sacred honors "?
It is true that an attempt was made by Mr. Adams and others, as
we have already seen, to effect a consolidation of the States into
one state.  "It has been said," he remarked, "that we are independent individuals making a bargain with each other. The question is not what we are now, but what we ought to be when our
bargain shall be made. The confederacy is to make us one individual only; it is to form us, like separate pieces of metal, into
one common mass. We shall no longer retain our separate individuality, but become a single individual," &c.  Mr. Adams was
mistaken.  The States, under the confederation, did not "blecome
a single individual; " on the contrary, they did " retain their separate individuality; " and the very article-the most important in
the draft of confederation-which he was so energetically opposing, was triumphantly upheld. The truth is, that the Union was
never weaker or more in danger of dissolution than under its first
formal bond of confederation. The first Congress assembled under
its provisions in 1781. In 1784, one year after peace was proclaimed between England and the United States, the army of the
latter was reduced to eighty men; and there was no means of providing for their support.  " Each State," says Madison, " yielding
to the voice of immediate interest or convenience, withdrew its
support from the confederation, till the frail and tottering edifice
was ready to fall upon our heads, and crush us beneath its ruins.;"




494           ADOPTION OF THE CONSTITUTION.
The chief difficulty experienced by Congress and the confedereration was that they had received no powers to regulate commerce. The States had consequently retained the right to impose
such duties on exports and imports as their several legislatures
might think proper. From this a twofold embarrassment resulted.
Congress had no'means of sustaining the public credit by levying
duties for the liquidation of the public debt, or defraying the public expenses. They could only apportion the quota to be paid by
each State; and the States failing in their duty of replenishing the
treasury, there was no way of compelling them.  Coercion of States,
however justifiable in the case of a repudiation of pecuniary obligations voluntarily entered into, was not within the powers of
Congress.  On the other hand, a serious embarrassment was felt
by Congress in making commercial treaties with foreign states; for
unless the States of the Union chose severally through their legislatures to ratify the acts of Congress in this regard, by adopting
such commercial regulations in their ports as might be necessary,
treaties made by Congress might be utterly inoperative; and in
practice it was found that, with the best intention on the part of
the States to carry out the recommendations of Congress, certain
inconvenient irregularities, inseparable from the distinct action of
thirteen different bodies, interfered with the efficiency of government and prevented its consistent action. In 1785 this important matter was under the consideration of Congress, and it was
proposed that the first paragraph of the ninth of the Articles of
Confederation should be altered so as to read thus:
" The United States in Congress assembled shall have the sole
and exclusive right and power of determining on peace and war,
except in the cases mentioned in the sixth article-of sending and
receiving ambassadors-entering into treaties and alliances-of
regulating the trade of the States, as well with foreign nations as
each other, and of laying such imposts and duties, upon imports
and exports, as may be necessary for the purpose; provided, that
the citizens of the States shall, in no instance, be subjected to pay
higher imposts and duties than those imposed on the subjects of
foreign powers; provided, also, that the legislative power of the
several States shall not be restrained from prohibiting the impor



ADOPTION OF THE CONSTITUTION.               495
tation or exportation of any species of goods or commodities whatever; provided, also, that all such duties as may be imposed shall
be collected under the authority and accrue to the use of the State
in which the same shall be payable; and provided, lastly, that
every act of Congress, for the above purpose, shall have the assent
of nine States in Congress assembled-of establishing rules for deciding, in all cases, what captures on land or water shall be legal,
and in what manner prizes taken by land or naval forces in the
service of the United States shall be divided or appropriated-of
granting letters of marque and reprisal in time of peace-appointing courts for the trial of piracies and felonies committed on the
high seas, and establishing courts for receiving and determining
finally appeals in all cases of capture; provided, that no member
of Congress shall be appointed judge of any of the said courts."
A letter was also prepared to be sent to the States, setting
forth the advantages to be expected from committing these powers
to Congress. It was felt, however, that any proposition for amending the act of confederation ought to emanate from the State legislatures rather than from Congress; and so the matter dropped in
Congress.
After various movements in the same direction, the State of
Virginia appointed a commission to "meet such commissioners as
might be appointed by the other States in the Union, at a time and
place to be agreed on, to take into consideration the trade of the
United States; to examine the relative situation and trade of the
said States; to consider how far a uniform system in their commercial regulations may be necessary to their common interest and
their permanent harmony; and to report to the several States such
an act relative to this great object as, when unanimously ratified
by them, will enable the United States in Congress assembled effectually to provide for the same."  The commissioners were also
directed to transmit to the several States copies of the resolution
under which their appointment had been made, with a circular requesting their concurrence, and proposing a time and place for
the meeting.
Only four States, New York, New Jersey, Pennsylvania, and
Delaware, at first supported the proposal of Virginia. Commis



496           ADOPTION OF THE CONSTITUTION.
sioners from these met with the Virginia commission at Annapolis
on the 11th of September, 1786, and remained in session till the
14th of the same month, when they made a joint report to their
several legislatures.  They set forth that they had felt it to be
unadvisable to proceed with the business of their mission with so
partial and defective a representation of the States as had assembled, a circumstance the more important as it appeared that commissioners had been appointed from New Hampshire, Massachusetts, Rhode Island, and North Carolina, though they had not attended at Annapolis.  They nevertheless expressed an earnest and
unanimous wish that speedy measures might be taken to effect a
general meeting of the States in a future convention for the same
and such other purposes as the situation of public affairs might be
found to require.  They also suggested that the commissioners to
be appointed should be clothed with somewhat larger powers than
had at first-except in the instance of New Jersey-been confided
to them.  The commissioners from  New Jersey had been empowered," to consider how far a uniform system in their commercial regulations and other important matters -might be necessary to the common interest and permanent harmony of the several States;"
and the convention urged the States to issue similar commissions
to their representatives.  The reason of this recommendation they
gave in these words: " That there are important defects in the
system of the federal government is acknowledged by the acts of
all those States which have convened in the present meeting; that
the defects, upon a closer examination, may be found greater and
more numerous than even these acts imply, is at least so far probable
from the embarrassments which characterize the present state of our
national affairs, foreign and domestic, as may reasonably be supposed to merit a deliberate and candid discussion in some mode
which will unite the sentiments and councils of all the States. In
the choice of the mode, your commissioners are of opinion that a
convention of deputies from the different States, for the special and
sole purpose of entering into this investigation, and digesting a
plan for supplying such defects as may be discovered to exist, will
be entitled to a preference, from considerations which will occur
without being particularized. Your commissioners decline an enu



ADOPTION OF THE CONSTITUTION.              497
meration of those national circumstances on which their opinion
respecting the propriety of a future convention with more enlarged
powers is founded; as it would be a useless intrusion of facts and
observations, most of which have been subjects of public discussion, and none of which can have escaped the penetration of those
to whom they would in this instance be addressed.  They are, however, of a nature so serious as, in the view of your commissioners,
to render the situation of the United States delicate and critical,
calling for an exertion of the united virtue and wisdom of all the
members of the confederacy."
On the 21st of Febuary, 1787, Congress resumed the consideration of this weighty matter, and the following preamble and resolution was adopted:
" Whereas there is provision in the Articles of Confederation and
Perpetual Union, for making alterations therein, by the assent of a
Congress of the United States, and of the legislatures of the
several States; and whereas experience hath evinced that there are
defects in the present confederation; as a mean to remedy which,
several of the States, and particularly the State of New York, by
express instructions to their delegates in Congress, have suggested
a convention for the purpose expressed in the following resolution;
and such convention appearing to be the most probable means of
establishing in these States a firm national government," Resolved, That, in the opinion of Congress, it is expedient that,
on the second Monday in May next, a convention of delegates, who
shall have been appointed by the several States, be held at Philadelphia, for the sole and express purpose of revising the Articles
of Confederation, and reporting to Congress and the several legislatures such alterations and provisions therein as shall, when agreed
to in Congress and confirmed by the States, render the Federal
Constitution adequate to the exigencies of government and the
preservation of the Union."'
The language of the foregoing preamble and resolution is important to be observed, as showing at once what was and what was
not contemplated in the proposed convention. The object was to
" establish in these States a firm national government " by " revising " and making " alterations " in the existing Articles of Confed



498           ADOPTION OF THE CONSTITUTION.
eration.  Clearly, it was not intended to change the form of
government, nor the terms of union; but simply to render the
Federal Constitution, then existing, " adequate to the exigencies of
government and the preservation of the Union."  Before the
adoption of the Constitution then to be revised, the States had been
united only by alliance as independent foreign states.  By its
adoption they had been combined into a federal union of states
which, though still, except in a few trifling matters, independent,
were no longerforeign to each other.  Having in specified particulars a common administration of the affairs of government, they
had a quasi nationality in common; and in treaties with foreign
powers, they were in fact held to be a nation. But from the independent action of the States the Union was in danger of complete
dissolution; and its character of nationality was being rapidly
obliterated.  Congress, therefore, wisely contemplated-not the
dissolution, but-the strengthening of the existing federal bond;
and the object of the convention was-not to create a nationality
which already existed, but-to establish and confirm it.
Scarcely, however, had the convention assembled, as they did
on the 2d Monday in May, 1787 (though from the absence of a
quorum it was not organized by the election of Washington as
president until the 25th of May), when it appeared that very radical changes in the whole form and structure of the Union were
contemplated by different parties in the convention.  From  Mr.
Luther Martin we learn that there were in fact' three parties
among the delegates, of very different sentiments and views."
There was, he says, " one party, whose object and wish it was to
abolish and annihilate all State governments, and to bring forward
one general government over all this extensive continent, of a
monarchical nature, under certain restrictions and limitations.
Those who openly avowed this sentiment were, it is true, but
few; yet it is equally true that there was a considerable number
who did not openly avow it, who were by myself and many others
of the convention considered as being in reality favorers of that
sentiment and acting upon those principles, covertly endeavoring
to carry into effect what they well knew openly and avowedly
could not be accomplished.




ADOPTION OF THE CONSTITUTION.              499
"The second party was not for the abolition of State governments, nor for the introduction of a monarchical government under
any form; but they wished to establish such a system as could
give their own States undue power and influence in the government,
over the other States.
" A third party was what I considered truly federal and republican. This party was nearly equal in numbers with the other two,
and was composed of the delegations from Connecticut, New York,
New Jersey, Delaware, and in part from Maryland; also of some
individuals from other representations.  This party was for proceeding upon terms of federal equality; they were for taking our
present federal system as the basis of their proceedings, and, as far
as experience had shown us that there were defects, to remedy
those defects; as far as experience had shown that other powers
were necessary to the Federal government, to give them those
powers. They considered this the object for which they were sent
by their States, and what their States expected from them.
"But the favorers of monarchy, and those who wished the total
abolition of State governments-well knowing that a government
founded on truly federal principles, the. bases of which were the
thirteen State governments preserved in full force and energy,
would be destructive of their views; and knowing they were too weak
in numbers openly to bring forward their system; conscious, also,
that the people of America would reject it if proposed to themjoined their interest with that party who wished a system giving particular States the power and influence over the others, procuring, in
return, mutual sacrifices from them in giving the government great
and undefined powers as to its legislative and executive; well knowing that by departing from a federal system they paved the way for
their favorite object, the destruction of the State governments and
the introduction of monarchy. And hence, I apprehend, in a great
measure arose the objections of those honorable members, Mr.
Mason and Mr. Gerry.  In everything which tended to give the
large States power over the smaller, the first of those gentlemen
could not forget he belonged to the Ancient Dominion; nor could
the latter forget that he represented old Massachusetts; that part
of the system which tended to give those States power over the




500           ADOPTION OF THE CONSTITUTION.
others met with their perfect approbation. But when they viewed
it charged with such powers as would destroy all State governments,
their own as well as the rest —when they saw a president so constituted as to differ from a monarch scarcely but in name, and
having it in his power to become such when he pleased-they
being republicans and federalists as far as an attachment to their
own States would permit them, warmly and zealously opposed those
parts of the system."
Such were the elements of which the Federal Convention was
composed:-a party purely monarchical in its aims, an opposite
party as purely republican, aiming at the freedom and equality not
only of the individual citizens, but of the States in whose trust were
placed all the rights of their respective citizens; and a party
which, while it did not favor monarchy, desired an inequality of
States, which should give greater power and influence to the larger
than to the smaller.
As early as the 29th of May, Mr. Randolph laid before the convention a series of resolutions as to the best plan of amending the
Constitution; and his second resolution showed the purpose of the
larger States to insist upon a greater influence than should be conceded to the smaller.  Under the confederation every State voted
as a unit, and consequently there was perfect equality of States in
the national council. Mr. Randolph's second resolution declared
that, instead of an equal vote by States, " the right of suffrage in the
national legislature ought to be proportioned to the quotas of contribution or to the number of free inhabitants." In order to carry
this principle into complete operation, he, after proposing in the
third resolution that the national legislature should consist of two
branches, a house of representatives and a senate, insisted in the
fifth that the members of the senate should be elected by the
house; thus, in effect, giving to the larger States power to construct
the senate as they chose, without consulting the wishes of the
smaller.  The only other important point in Mr. Randolph's
resolutions was contained in the seventh, which proposed a limited
term of office for an executive, who should be chosen by the
national legislature. Had this resolution been adopted, the president, like the senate, would have been a mere appointee of the




ADOPTION OF THE CONSTITUTION.               501
larger States, so that the executive and legislative powers would
have been wholly under their control, and the smaller States
would have been powerless in every case where the interests of the
larger were alike.
On the same day, Mr. Charles Pinckney submitted a " draft of a
federal government, to be agreed upon between the free and independent States of America," which was subsequently made the
basis of the Constitution.  It was a masterly and statesmanlike
document, such as could only have emanated from a man equally
jealous of the independence of his State and earnestly desirous of
the perpetuity, efficiency, and glory of the Union. It clearly distinguished and limited the powers of the legislative, executive, and
judicial branches of the government, and provided for a limited
presidential term, but agreed with Mr. Randolph's resolutions in
proposing that the senate.should be elected by the house.
On the 15th of June, what are known as the New Jersey resolutions were offered by Mr. Patterson of that State. They proposed a restriction of the action of the convention to the purposes
contemplated by the Congress in calling for it, and suggested an
increase in the powers of Congress, the creation of a federal executixe, to consist of - persons, and the establishment of a supreme
federal judiciary, to try certain specified causes.  This plan was
warmly supported by the smaller States.
On the 18th of June, Colonel Hamilton presented a paper
" containing his ideas of a suitable plan of government for the
United States." This was the great effort of the favorers of a complete consolidation of the States. In the construction of the federal legislature, it ignored- the States, making the members of the
senate, as well as those of the house, to be elected by the people
in proportion to the population, without regard to States. The
senators were to be elected for life. The president was to hold
his office during good behavior, and was to be elected by electors
chosen in the same way as the senators, according to population.
The States were regarded as mere territorial provinces of the
Union; and, the better to keep them in subjection, the governor
of every State was to be appointed by the president, and to have
an absolute veto on all acts of the State legislature, over which he




502           ADOPTION OF THE CONSTITUTION.
might preside. As if this were not sufficient, it was further proposed that " no State should have any forces, land or naval; and
that the militia of all the States should be under the sole and exclusive direction of the United States; the officers of which (i. e.,
the State militias) should be appointed by them."
Colonel Hamilton's " ideas of a suitable plan of government"
found no favor with the convention, and were summarily dismissed.
The New Jersey resolutions also were respectfully considered, but
in the end rejected, the convention feeling that a more radical
change in the constitution of the government was necessary than
could be honestly made to appear in the form of amendments to
the act of confederation. The debates, therefore, continued on the
various articles of the first two plans by Mr. Randolph and Mr.
Pinckney, until the 26th of July, when the following resolutions,
as they had, from time to time, been adopted, were, together with
the propositions of these two gentlemen, referred to a select committee, with instructions to report a constitution.
RESOLUTIONS OF THE CONVENTION,
1Referred on the Twenty-third and Twenty-sixth of July, 1787, to a
committee of detail (Messrs. RUTLEDGE, RANDOLPH, GORHAM,
ELLSWORTH, and WILSON), for the purpose of reporting a Constitution.
JUNE    " I. Resolved, That the Government of the United States
1 ought to consist of a supreme legislative, judiciary, and executive.
2     "II. Resolved, That the legislature  consist of two
branches.
21     " III. Resolved, That the members of the first branch of
the legislature ought to be elected by the people of the sev22 eral States, for the term of two years; to be paid out of the
23 public treasury; to receive an adequate compensation for
their services; to be of the age of twenty-five years at least;
to be ineligible to, and incapable of holding any office under
the authority of the United States (except those peculiarly
belonging to the functions of the first branch), during the
term of service of the first branch.




ADOPTION OF THE CONSTITUTION.                 503
JUNE    " IV. Resolved, That the members of the second branch
25  of the legislature of the United States ought to be chosen by
the individual legislatures; to be of the age of thirty years
at least; to hold their offices for six years, one third to go
out biennially; to receive a compensation for the devotion of
their time to the public service; to be ineligible to, and incapable of holding any office under the authority of the
United States (except those peculiarly belonging to the functions of the second branch) during the term for which they
are elected, and for one year thereafter.
" V. Resolved, That each branch ought to possess the
right of originating acts.
Postponed, 27.  "VI. Resolved, That the national legislature
JULY ought to possess the legislative rights vested in Congress by
16  the confederation; and, moreover, to legislate, in all cases,
17 for the general interests of the Union; and also in those to
which the States are separately incompetent, or in which the
harmony of the United States may be interrupted by the exercise of individual legislation.'' VII. Resolved, That the legislative acts of the United
States, made by virtue and in pursuance of the articles of
union, and all treaties made and ratified under the authority
of the United States, shall be the supreme law of the respective States, as far as those acts or treaties shall relate to the
said States, or their citizens and inhabitants; and that the
judiciaries of the several States shall be bound thereby in
their decisions, anything in the respective laws of the individual States to the contrary notwithstanding.
16     " VIII. Resolved, That in the original formation of the
legislature of the United States, the first branch thereof
shall consist of sixty-five members, of which number
New Hampshire shall send    3      Delaware   shall send    1
Massachusetts   "   "     8        Maryland     "   "      6
Rhode Island    "   "     1        Virginia     "   "    10
Connecticut    "   "      5        North Carolina "   "    5
New York       "   "      6        South Carolina "   "    5
New Jersey     "   "      4        Georgia      "   "      3
Pennsylvania    "   "     8




504            ADOPTION OF THE CONSTITUTION.
JULY But as the present situation of the States may probably alter
in the number of their inhabitants, the legislature of the
United States shall be authorized, from time to time, to apportion the number of representatives; and in case any of
the States shall hereafter be divided, or enlarged by addition
of territory, or any two or more States united, or any new
States created within the limits of the United States, the
legislature of the United States shall possess authority to
regulate the number of representatives, in any of the foregoing cases, upon the principle of the number of their inhabitants, according to the provisions hereafter mentioned,
namely: Provided always, that representatives ought to be
proportioned according to direct taxation. And in order to
ascertain the alteration in the direct taxation which may be
required, from time to time, by the changes in the relative
circumstances of the States"IX. Resolved, That a census be taken within six years
from the first meeting of the legislature of the United States,
and once within the term of every ten years afterwards, of all
the inhabitants of the United States, in the manner and according to the ratio recommended by Congress, in their resolutions of April 18, 1783; and that the legislature of the
United States shall proportion the direct taxation accordingly.
" X. Resolved, That all bills for raising or apportioning
money, and for fixing the salaries of the officers of the Government of the United States, shall originate in the first
16 branch of the Legislature of the United States, and shall not
be altered or amended by the second branch; and that no
money shall be drawn from the public treasury but in pursuance of appropriations to be originated by the first branch.
" XI. Resolved, That, in the second branch of the legislature of the United States, each State shall have an equal
vote.
26    " XII. Resolved, That a national executive be instituted,
to consist of a single person, to be chosen by the national
legislature for the term of seven years; to be ineligible a




ADOPTION OF THE CONSTITUTION.               505
JULY second time; with power to carry into execution the national
laws; to appoint to offices in cases not otherwise provided
for; to be removable on impeachment and conviction of malpractice or neglect of duty; to receive a fixed compensation
for the devotion of his time to public service, to be paid out
of the public treasury.
21     "XIII. Resolved, That the national executive shall have
a right to negative any legislative act, which shall not be
afterwards passed, unless by two third parts of each branch
of the national legislature.
18     " XIV. Resolved, That a national judiciary be established,
21 to consist of one supreme tribunal, the judges of which shall
be appointed by the second branch of the national legisla18 ture; to hold their offices during good behavior; to receive
punctually, at stated times, a fixed compensation for their services, in which no diminution shall be made, so as to affect
the persons actually in office at the time of such diminution.
" XV. iResolved, That the national legislature be empowered to appoint inferior tribunals.
18     "XVI. Resolved, That the jurisdiction of the national
judiciary shall extend to cases arising under laws passed by
the general legislature, and to such other questions as involve
the national peace and harmony.
"XVII. Resolved, That provision ought to be made for
the admission of new States lawfully arising within the limits
of the United States, whether from a voluntary junction of
government and territory, or otherwise, with the consent
of a number of voices in the national legislature less than
the whole.
"XVIII. Resolved, That a republican form  of government shall be guaranteed to each State; and that each State
shall be protected against foreign and domestic violence.
23     "XIX. Resolved, That provision ought to be made for
the amendment of the articles of union, whensoever it shall
seem necessary.
"XX. Resolved, That the legislative, executive, and judiciary powers, within the several States, and of the national
22




506            ADOPTION OF THE CONSTITUTION.
JULY government, ought to be bound, by oath, to support the articles of union.
" XXI. Resolved, That the amendments which shall be
offered to the confederation by the convention ought, at a
proper time or times after the approbation of Congress, to be
submitted by an assembly or assemblies of representatives,
recommended by the several legislatures, to be expressly
chosen by the people, to consider and decide thereon.
"XXII. Resolved, That the representation in the second
branch of the legislature of the United States conisist of two
members from each State, who shall vote per capita.
26     " XXIII. Reso7wvd ~ That it be an instruction to the committee, to whom were preferred the proceedings of the convention for the establishment of a national government, to
receive a clause or clauses, requiring certain qualifications of
property and citizenship, in the United States, for the executive, the judiciary, and the members of both branches of the
legislature of the United States.
During the protracted debates which took place in the discussion
of the foregoing resolutions, the most important were on the third
and fourth.  On the one hand, the larger States demanded that
the members of both houses in the national legislature should be
elected by the people according to population, so as to secure to
thein a preponderating influence in both.  On the other hand, the
smaller States, feeling that such a mode of representation would set
them at the mercy of the larger, insisted on an equality of representation in each house; so that the States, large and small, might be
equal in their voice and vote in the assembly of the Union. The arguments advanced on both sides are profoundly interesting, and we
give the most important of them in the words of Mr. Luther Martin, a distinguished member of the convention.  The italics are his.
" The advocates of unequal representation," he says, in his celebrated letter, "urged that, when the Articles of Confederation were
formed, it was only from necessity and expediency that the States were
admitted each to have an e2utal vote; but that our situation was
now altered, and therefore those States who considered it contrary to




ADOPTION OF THE CONSTITUTION.                507
their interest would no longer abide by it.  They said no State
ought to wish to have influence in government except in proportion
to what it contributes to it; that if it contributes but little, it
ought to have but a small vote; that taxation and representation
ought always to go together; that if one State had sixteen times as
many inhabitants as another, or was sixteen times as wealthy, it ought
to have sixteen times as many votes; that an inhabitant of Pennsylvania ought to have as much weight and consequence as an inhabitant of Jersey or Delaware; that it was contrary to the feelings of
the human mind-what large States would never submit to; that
the large States would have great objects in view, in which they would
never permit the smaller States to thwart them; that equality of
suffrage was the rotten part of the Constitution, and that this was
a happy time to get clear of it. In fine, it was the poison which
contaminated our whole system, and the source of all the evils
we experience.
"This is the substance of the arguments —if arguments they may
be called-which were used in favor of inequality of sufzrage. Those
who advocated the equality of suffrage took the matter up on the
original principles of government.  They urged that all men, considered in a state of nature, before any government is formed, are
equally free and independent, no one having any right or authority
to exercise power over another, and this without any regard to d&/erence in personal strength, understanding, or wealth —that, when such individuals enter into government they have each a right to an equal
voice in its first formation, and afterwards have each a right to an
equal vote in every matter which relates to their government:that if it could be done conveniently they have a right to exercise
it in person; where it cannot be done in person, but, for convenience, representatives are appointed to act for them, every person
has a right to an equal vote in choosing that representative who is
intrusted to do, for the whole, that which the whole, if they could
assemble, might do in person, and in the transacting of which each
would have an equal voice: —that if we were to admit, because a
man was more wise, more strong, or more wealthy, he should be entitled to more votes than another, it would be inconsistent with
the freedom and liberty of that other, and would reduce him to
slavery.




508            ADOPTION OF THE CONSTITUTION.' Suppose, for instance, ten individuals, in a state of nature, about
to enter into government, nine of whom are equally wise, equally
strong, and equally wealthy; the tenth is ten times as wise, ten
times as strong, or ten times as rich: if, for this reason, he is to
have ten votes for each vote of either of the others, the nine might
as well have no vote at all-since the whole nine might assent to a
measure, yet the vote of the tenth would countervail and set aside
all their votes. If this tenth approved of what they wished to
adopt, it would be well; but if he disapproved, he could prevent it;
and in the same manner he could carry into execution any measure he wished, contrary to the opinions of all the others, he having
ten votes, and the others altogether but nine.  It is evident that,
on these principles, the nine would have no will nor discretion of
their own, but must be totally dependent on the will and discretion
of the tenth; to him they would be as absolutely slaves as any negro
is to his master. Hence it was urged, the inequality of representation, or giving to one man more votes than another, on account of
his wealth, &c., was altogether inconsistent with the principles of
liberty; and in the same proportion as it should be adopted, in
favor of one or more, in that proportion are the others enslaved.
It was urged that, although every individual should have an equal
voice in the government, yet even the superior wealth, strength, or
understanding, would give great and undue advantages to those who
possessed them —that wealth attracts respect and attention; superior strength would cause the weaker and more feeble to be cautious
how they offended, and to put up with small injuries rather than engage in an unequal contest.  In like manner, superior understanding would give its possessor many opportunities of profiting at the
expense of the more ignorant.
" Having thus established these principles with respect to the
rights of individuals in a state of nature, and what is due to each on
entering  into government-the principles established by every
writer, on liberty —they proceeded to show that states, when once
formed, are considered, with respect to each other, as individuals in a
state of nature; that, like individuals, each state is considered
equally free and equally independent, the one having no right to exercise
authority over the other, though more strong, mnore wealthy, or abounld



ADOPTIO.'; OF THE CONSTITUTION.                509
inq with more inhabitants —thlat, when a number of states unite themselves under a federal government, the same principles apply to them
as when a number of individual men unite themselves under a state
government-that every argument which shows one man ought not
to have more votes than another, because he is wiser, stronger, or
wealthier, proves that one state ought not to have more votes than another, because it is stronger, richer, or more populous; and that by
giving one state or one or two states more votes than the others, the
others thereby are enslaved to such state or states having the greater
number of votes, in the same manner as in the case before put of indivicitals, when one has more votes than the others-that the reason
why each individual man, in forming a state government, should
have an equal vote, is because each individual, before he enters into
government, is equally free and independent; so each state, when states
enter into a federal government, are entitled to an equal vote, because,
before they entered into such federal government, each state was
egually free and equally indepenennt-that adequate representation of
men, formed into a state government, consists in each man having an
ecqual voice; either personally, or if by representatives, that he
should have an equal voice in choosing the representatives —so
adequate representation of states in a federal government consists in
each state having an equal voice, either in person or by its representative, in everything which relates to the federal government —that
this adequacy of representation is more important in a federal than in
a state government, because the members of a state government, the
district of which is not very large, have generally such a common interest, that laws can scarcely be made by one part oppressive to the
others without their suffering in common; but the dferent states composing an extensive federal empire, widely distinct one from  the
other, may have interests so totally distinct, that the one part might
be greatly benefited by what would be destructive to the other.
" It was said that the maxim that taxation and representation
ought to go together was true so far that no person ought to be
taxed who is not represented; but not in the extent insisted upon, to
wit, that the quantutm of taxation and representation ought to be tho
same; on the contrary, the quantum of representation depends upon
the quantum  of freedom, and therefore all, whether individual




510            ADOPTION OF THE CONSTITUTION.
states or individual men, who are equally free, have a right to equal
representation-that to those who insist that he who pays the greatest
share of taxes ought to have the greatest number of votes, it is a
sufficient answer to say, that this rule would be destructive of the
liberty of the others, and would render them slaves to the more rich and
wealthy-that if one man pays more taxes than another, it is because
he has more wealth to be protected by government, and he receives
greater benefits froln the government; so, if one state pays more to
the federal government, it is because, as a state, she enjoys greater
blessings from it; she has more wealth protected by it, or a greater
number of inhabitants, whose rights are secured, and who share its
advantages.
" It was urged that, upon these principles, the Pennsylvanian, or
inhabitant of a large state, was of as much consequence as the inhabitant of Jersey, Delaware, Maryland, or any other State That his
consequence was to be decided by his situation in his own state; that,
if he was there as free, if he had as great share in the forming of his
own government, and in the making and executing its laws, as the
inhabitants of those other states, then he was equally important and
of equal consequence. Suppcse a confederation of states had never
been adopted, but every state had remained absolutely in its independent situation, no person could, with propriety, say that the
citizen of the large state was not as important as the citizen of the
smaller. The confederation of states cannot alter the case. It was
said that, in all transactions between state and state, the freedom,
independence, importance, and consequence, even the individuality
of each citizen of the different states, might, with propriety, be said
to be swallowed up or concentrated in the independence, the freedom, and the individuality of the state of which they are citizens;
that the thirteen states are thirteen distinct, political, individual existences, as to each other; that this federal government is, or ought
to be, a government over these thirteen political, individual existences, which forms the members of that government; and as the
largest state is only a single individual of this government, it ought
to have only one vote; the smallest state, also being one individual
member of this government, ought also to have one vote.  To those
who urged that the states having equal suffrage was contrary to




ADOPTION OF THE CONSTITUTION.               511
the feelings of the human heart, it was answered, that it was admitted to be contrary to the feelings of pride and ambition; but
those were feelings which ought not to be gratified at the expense of
freedom.
" It was urged that the position that great states would have great
cbjects in view, in which they would suffer the less states to thwart
them, was one of the strongest reasons why inequality of representation ought not to be admitted.  If those great objects were not
inconsistent with the interest of the less states, they would readily
concur in them; but if they were inconsistent with the interest of
a majority of the states composing the government, in that case
two or three states ought not to have it in their power to aggrandize
themselves at the expense of all the rest. To those who alleged
that equality of suffrage, in our federal government, was the
poisonous source from which all cur misfortunes flowed, it was answered that the allegation was not founded in fact-that equality
of suffrage had never been complained of by the states, as a defect in
our federal system-that, among the eminent writers, foreigners
and others, who had treated of the defects in our confederation,
and proposed alterations, none had proposed an alteration in this
part of the system; ani members of the convention, both in and
out of Congress, who advocated the equality of suffrage, called upon
their opponents, both in and out of Congress, and challenged them
to produce one single instance where a bad measure had been
adopted, or a good measure had failed of adoption, in consequence
of the states having an equal vote. On the contrary, they urged
that all our evils flowed from the want of power in the federal
head, and that, let the right of suffrage in the states be altered in
any manner whatever, if no greater power were given to the government, the same inconveniences would continue.
"It was denied that the equality of suffrage was originally
agreed to on principles of necessity or expediency; on the contrary, that it was adopted on the principles of the rights of men,
and the rights of states, which were then well known, and which
then influenced our conduct, although they now seem to be forgotten. For this the journals of Congress were appealed to. It
was from them shown that when the committee of Congress re.




512           ADOPTION OF THE CONSTITUTION.
ported to that body the Articles of Confederation, the very first
article which became subject of discussion was that respecting
equality of suffrage-that Virginia proposed divers modes of suffrage,
all on the principle of inequality, which were almost unanimously rejected-that on the question of adopting the articles, it passed,
Virginia being the only state which voted in the negative-that,
after the Articles o& Confederation were submitted to the states,
by them to be ratified, almost every state proposed certain amendinents, which they instructed their delegates to endeavor to obtain
before ratification; and that, among all the amendments proposed,
not one state, not even Virginia, proposed an amendment of that
article securing the equality of suffrage; the most convincing proof
it was agreed to, and adopted, not from necessity, but upon a full
conviction that, according to the principles of free government, the
states had a right to that equality of suffrage.
"But it was to no purpose that the futility of their objections was
shown.  When driven from the pretence that the equality of suffrage had been originally agreed to on principles of expediency and
necessity, the representatives of the large states persisted in a declaration, that they would never agree to admit the smaller states to an
equality of suffrage. In answer to this, they were informed, and
informed in terms the most strong and energetic that could possibly
be used, that we never could agree to a system giving them the undue
influence and superiority they proposed-that we would risk every
possible consequence-that from anarchy and confusion order might
arise —that slavery was the worst that could ensue, and we considered the system proposed to be the most complete, most abject
system of slavery that the wit of man ever devised, under the pretence of forming a government for free states-that we never would
submit tamely and servilely to a present certain evil in dread of a
future, which might be imaginary-that we were sensible the eyes
of our country and the world were upon us-that we would not
labor under the imputation of being unwilling to form a strong and
energetic federal government; but we would publish the system
which we approved, and also that which we opposed, and leave it to
our country and the world at large to judge, between us, who best
understood the rights of freemen and free states, and who best ad



ADOPTION OF THE CONSTITUTION.              513
vocated them; and to the same tribunal we would submit, who
ought to be answerable for all the consequences which might arise
to the Union, from the convention breaking up without proposing
any system  to their constituents. During this debate we were
threatened that, if we did not agree to the system proposed, we
never should have an opportunity of meeting in convention to deliberate on another; and this was frequently urged  In answer,
we called upon them to show what was to prevent it, and from what
quarter was our danger to proceed.  "Was it from a foreign enemy?
Our distance from Europe, and the political situation of that country
left us but little to fear. Was there any aimibitious state or states,
who, in violation of every sacred obligation, was preparing to enslave
the other states, and raise itself to consequence on the ruin of the
others? Or was there any such ambitious individual? We did not
apprehend it to be the case. But suppose it to be true; it rendered
it the more necessary that we should sacredly guard against a system
which might enable all those ambitious views to be carried into
effect, even under the sanction of the Constitution and government.  In
fine, all these threats were treated with contempt, and they were
told that we apprehended but one reason to prevent the states
meeting again in convention; that, when they discovered the part
this convention had acted, and how much its members were abusing the trust reposed in them, the states would never trust another
convention."
To this degree of warmth-almost of anger-did the debate on
this important subject proceed, and on the vote being taken it was
found to be equally divided, five States voting for an inequality of
representation, and five against it.  A conference committee was accordingly appointed from the different parties to endeavor to come
to an agreement; and the result was that the opponents of an unequal representation agreed to yield their objections to it in the lower
house-in reference to which the debate had taken place-provided
its advocates would pledge themselves to ssupport an equal representation in the senate.  Thus, by an equitable compromise, the
framers of the Constitution came to a determination on this cardinal question, in regard to which their radical differences of opinion
threatened to destroy the Union, and to turn the convention into a
22*




514           ADOPTION OF THE CONSTITUTION.
direct means for the overthrow of the confederation they had been
commissioned to amend.
The committee to which the twenty-three resolutions were committed on the 26th of July, reported their draft of a Constitution
on the 7th of August. In its phraseology we discover one singular
difference between it and the resolutions. In the latter we find the
word national repeatedly used in connection with the United States.
The legislature of the United States is called the national legislature, their executive a national executive, and their judiciary a national judiciary.  In the draft of the committee this expression nowhere appears. It had been adopted, and its use strongly urged
by the monarchical party, and those who favored the obliteration of
States and the erection of a consolidated government, on which account it was opposed by the wiser men who did not desire to overthrow but to confirm the federal character of the bond between
the States. In the debate upon the fourth resolution, which, in its
original form, spoke of " the national legislature," it was moved to
erase the word " national," and to substitute the words "of the United States," and the motion was carried in the affirmative.  The same
word, however, reappears in later resolutions, but from the time of
their commitment it never afterwards occurs.  The truth is, this
word, from the characters and aims of those who sought to introduce
it, was invested with a sinister significance. No one had denied
that the confederation was a national confederation. No one now
denied that the United States would form a national union under the
new Constitution. But the use of this term by the monarchists and
consolidationists, in order to impart the notion of such nationality
to the Union, as is understood to exist in consolidated monarchies,
was bitterly opposed by men who understood and intended it to be
a simple bond between sovereign and independent States, delegating
to a common agency only certain specified and well-defined functions of their independent sovereignties.  Hence, though even in
the committee some may have desired that it should be retained, it
was felt that the mere use of this word in the Constitution would
suffice to cause its absolute rejection by the States, and it was
dropped accordingly.
The draft presented by the committee was submitted to a rigor



ADOPTION OF THE CONSTITUTION.               515
ous examination and discussion from the 7th of August till the 8th
of September, when, with the various changes and amendments
made to it in convention, it was again committed to a committee of
revision, who were charged to revise its style, and arrange the articles agreed to by the house.
On the 12th of September the committee of revision delivered
their report at the secretary's table; and if we compare it with the
draft from which it was prepared, we find at once a very striking
change in the preamble. In the first draft the preamble was as
follows:" We, the people of the States of New Hampshire, Massachusetts, Rhode Island and Providence Plantations, Connecticut, New
York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia,
North Carolina, South Carolina, and Georgia, do ordain, declare,
and establish the following Constitution, for the government of ourselves and our posterity."
In the convention this preamble had been adopted without
amendment. In the revised draft the enumeration of the States is
entirely omitted; and the preamble, which is that of the Constitution as finally adopted, reads thus:
"' We, the people of the United States, in order to form a more
perfect union, establish justice, insure domestic tranquillity, provide
for the common defence, promote the general welfare, and secure
the blessings of liberty to ourselves and our posterity, do ordain and
establish this Constitution for the United States of America."
From  the omission of the names of the several States in the
Constitution as adopted, and the substitution of the phrase, " We,
the people of the United States," some, who have not yet abandoned
the hope of converting the union of sovereign States established by
our fathers into the consolidated empire they deliberately refused
to make, have argued that, by the adoption of the latter phraseology, "the people of the United States," are represented as one corporation; that is to say, that the Constitution declares the Union
to be a corporation of the individual citizens of all the States, and
not a corporation of States.  Nothing could be more absurd than
such a train of reasoning. It might as well be asserted that the
Constitution was not intended to create a government, nor to be of




516            ADOPTION OF THE CONSTITUTION.
authority beyond the lives of its framers, because the clause ordaining, declaring, and establishing " the following Constitution for
the government of ourselves and our posterity," which appears in
the draft, does not appear in the revised draft nor in the Constitution. This latter inference will certainly not be admitted by the
modern admirers of consolidated monarchies. The true reason of
the change of phraseology in the preamble is very simple, though
not a little curious, if we consider the events of'the past three
years
The thirteen States were still members of the Union as constituted by the " Articles of Confederation and Perpetual Union,"
which had been adopted by the free vote of each of the thirteen
States; and the thirteenth article provided that1" Art. XIII. Every State shall abide by the determination of
the United States in Congress assembled, on all questions which by
this confederation are submitted to them.  And the articles of this
confederation shall be inviolably observed by every State, and the
Union shall be perpetual; nor shall any alteration, at any time hereacfter, be made in any of them, unless such alteration be agreed to in a
Congress of the United States, and be afterwards confirmed by the legislature of every State."
It was under this thirteenth article that Congress had requested
the States to send delegates to the convention, "for the sole and express purpose of revising the Articles of Confederation, and reporting
to Congress and the several legislatures such alterations and provisions therein as shall, when agreed to in Congress and confirmed by
the States-i. e., all the States-render the Federal Constitution
adequate to the exigencies of government and the preservation of
the Union." But instead of carrying out the original designs of
Congress, the convention, when it assembled, utterly refused to
revise or report alterations in the Articles of Confederation.  Mr.
Patterson's resolutions declaring that this should be the limit of
their action, were respectfully considered and then summarily dismissed. They had determined on a new Constitution such as could
not honestly be called a mere amendment of the old; and foreseeing, from the differences of opinion which had appeared in the convention, that the speedy accession of all the States was not to be




ADOPTION OF THE CONSTITUTION.              517
anticipated, they had resolved, in the seventh article of the Constitution, that"Art. VII.   The ratification  of the conventions of nine
States shall be sufficient for the establishment of this Constitution
between the States so ratifying the same."
Now the Articles of Confederation under which the United
States were at that time bound together, declared their union under
its existing conditions to be perpetual, and that no alteration of it
should ever be made without the consent of every one of the thirteen States.  Clearly, then, the adoption of the new Constitution
by nine States would be a distinct repudiation of the bond of the
confederation, and a secession from the Union constituted under it.
As yet the novel notion of coercing States either to remain in a
" perpetual Union," or to enter into a confederation which they disapproved, had not been discovered. It was doubtful what States
might determine to secede from the confederation; but the secessionists had as little thought of compelling the confederates to follow them in their secession, as the latter had of forcing the former
to remain. It would, however, have been a manifest absurdity in
the nine seceding States to claim the confederate States as under
their jurisdiction by inserting their names in the preamble of a
Constitution which was binding only on themselves; and this was
the only reason for the suppression of the names of the contracting
States in the preamble of the Constitution.  It was still uncertain
what States would adopt it. It was hoped that all might ultimately ratify it. But because they could not know which might be
the first nine States of the new Union, and claimed no authority over
the non-complying States, they agreed to use the corporate style of
"the United States " in the preamble, that it might include those
only who adhered to it.
The revised draft was submitted to a searching examination
until Saturday, the 15th of September, when, on the question being
put to agree to the Constitution as amended, it was passed in the
affirmative-ALL THE STATES CONCURRING; and the Constitution,
now at length harmoniously adopted in convention, was engrossed,
and transmitted to Congress, which body having approved the
same, it was by unanimous resolution, on the 28th of September,




518           ADOPTION OF THE CONSTITUTION.
1787, sent for final approval to the legislatures of the several
States.  By these it was successivelyratified from the 7th of December, 1787, when it was ratified by Delaware, to the 29th of
May, 1790, when it was ratified by Rhode Island.
On the 2d of July, 1788, the ratification of New Hampshire
having been received in the confederate Congress, and this being
the ninth ratification received, Congress immediately passed an act
for putting the new Constitution in operation. The first Wednesday in January, 1789, was appointed for the election by the States
of presidential electors; the first Wednesday in February for the
vote of the electors for President; and the first Wednesday in
March for commencing proceedings under the new Constitution.
Accordingly the elections of the States were held; on Wednesday,
the 4th of March, 1789, proceedings commenced under the Constitution; and on the 30th of April of the same year, GEORGE WASHINGTON, unanimously elected by the suffrage of the electors; was
inaugurated as President of the United States.
The Constitution, however, was as yet far from perfect. It
conveyed to the United States no power of injuring the rights and
liberties either of citizens or of the States.  On the other hand, it
did not definitely restrain the Federal authority fromn acts which
might be ruinous to both. This defect of indefiniteness was keenly
felt by the States; and in their ratifications of the Constitution,
many of them made formal declarations of the understanding with
which they approved it, and at the same time called for amendments
to it which should more clearly guarantee the rights of States and
citizens. Of these declarations and proposals of amendment the
most important were the following:
MASSACHUSETTS. "That it be explicitly declared that all
powers not expressly delegated by the aforesaid Constitution, are
reserved to the several States, to be by them exercised."
NEW HAMPSHIRE. " That it be explicitly declared that all
powers not expressly and particularly delegated by the aforesaid
Constitution, are reserved to the several States, to be by them exercised.
" Congress shall never disarm any citizen, unless such as are or
have been in actual rebellion.




ADOPTION OF THE CONSTITUTION.               519
"That no person shall be tried for any crime by which he may
incur an infamous punishment, or loss of life, until he first be indicted by a grand jury, except in such cases as may arise in the
government and regulation of the land and naval forces.
" In civil actions between the citizens of different States, every
issue of fact, arising in actions at common law, shall be tried by
jury, if the parties, or either of them, shall request it.
"Congress shall make no laws touching religion, or to infringe
the rights of conscience."
SOUTH CAROLINA.  " This convention doth also declare, that no
section or paragraph of the said Constitution warrants a construction that the States do not retain every power not expressly relinquished by them, and vested in the.General Government of the
Union."
VIrGINIA. "We, the delegates of the people of Virginia, &c.,
do, iwthe name and in behalf of the people of Virginia, declare and
make known, that the powers granted under the Constitution, being
derived from the people of the United States, may be resumed by
them, whensoever the same shall be perverted to their injury or oppression, and that every power not granted thereby remains with them,
and at their will; that, therefore, no right, of any denomination, can
be cancelled, abridged, restrained, or modified, by the Congress, by
the Senate, or House of Representatives, acting in any capacity, by
the President, or any department or officer of the United States,
except in those instances in which power is given by the Constitution for those purposes; and that, among other essential rights, the
liberty of conscience, and of the press, cannot be cancelled, abridged,
restrained, or modified, by any authority of the United States."
NEW YORK.  " That the powers of government may be reas.
sumed by the people whensoever it shall become necessary to their
happiness; that every power, jurisdiction, and right, which is not by
the said Constitution clearly delegated to the Congress of the United
States, or the departments of the Government thereof, remains to
the people of the several States, or to their respective State Governments, to whom they may have granted the same; and that
those clauses in the said Constitution, which declare that Congress
shall not have or exercise certain powers, do not imply that Congress




520           ADOPTION OF THE CONSTITUTION.
is entitled to any powers not given by the said Constitution; *but
such clauses are to be construed either as exceptions to certain
specified powers, or as inserted merely for greater caution.
" That the people have an equal, natural, and inalienable right
freely and peaceably to exercise their religion, according to their dictates of conscience; and that no religious sect or society ought to
be favored or established by law in preference to others.
" That the people have a right to keep and bear arms; that a
well-regulated militia, including the body of the people capable of
bearing arms, is the proper, natural, and safe defence of a free
State.
"That standing armies, in times of peace, are dangerous to liberty, and ought not to be kept up except in cases of necessity; and
that, at all times, the military should be under strict subordination
to the civil power.
" That in time of peace no soldier ought to be quartered in any
house without the consent of the owner; and in time of war only by
the civil magistrate, in such manner as the laws may direct.
"' That no person ought to be taken, imprisoned, or disseized of
his freehold, or be exiled, or be deprived of his privileges, franchises, life, liberty, or property, but by due process of law.
"That no person ought to be put twice in jeopardy of life or
limb for one and the same offence; nor, unless in case of impeachment, be punished more than once for the same offence.
" That excessive bail ought not to be required, nor excessive
fines imposed, nor cruel and unusual punishments inflicted.
" That (except in the government of the land and naval forces,
and of the militia when in actual service, and in cases of impeachment) a presentment or indictment by a grand jury ought to be observed as a necessary preliminary to the trial of all crimes cognizable by the judiciary of the United States; and such trial should be
speedy, public, and by an impartial jury of the county where the
crime was committed; and that no person can be found guilty but
by the unanimous consent of such jury;... and that in all criminal prosecutions the accused ought to be informed of the cause and
nature of his accusation, to be confronted with his accusers and the
witnesses against him, to have the means of producing his witnesses,




ADOPTION OF THE CONSTITUTION.                521
and the assistance of counsel for his defence; and should not be
compelled to give evidence against himself.
" That the trial by jury, in the extent it obtained by the com.
mon law of England, is one of the greatest securities to the rights
of a free people, and ought to remain inviolate.
" That every freeman has a right to be secure from all unreasonable searches and seizures of his person, his papers, or his property; and therefore, that all warrants to search suspected places,
or seize any freeman, his papers, or property, without information,
upon oath or affirmation, of sufficient cause, are grievous and oppressive; and that all general warrants (or such in which the place or
person suspected are not particularly designated) are dangerous,
and ought not to be granted.
" That the people have a right peaceably to assemble together to
consult for their common good, or to instruct their representatives,
and that every person has a right to petition or apply to the legislature for redress of grievances.
" That the freedom of the press ought not to be violated or restrained."
RHODE ISLAND. " That those clauses in the Constitution which
declare that Congress shall not have or exercise certain powers, do
not imply that Congress is entitled to any powers not given by the
said Constitution; but such clauses are to be construed as exceptions to certain specified powers, or as inserted merely for greater
caution.
" That religion, or the duty which we owe to our Creator, and the
manner of discharging it, can be directed only by reason and conviction, and not by force and violence; and therefore all men have
a natural, equal, and inalienable right to the exercise of religion
according to the dictates of conscience; and that no particular
religious sect or society ought to be favored or established by law in
preference to others.
" That all power of suspending laAws, or the execution of laws, by
any authority without the consent of the representatives of the people
in the legislature, is injurious to their rights, and ought not to be
exercised.
" That, in all capital and criminal prosecutions, a man hath the




522           ADOPTION OF THE CONSTITUTION.
right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence, and be
allowed counsel in his favor, and to a fair and speedy trial by an
impartial jury in his vicinage, without whose unanimous consent he
cannot be found guilty (except in the government of the land and
naval forces), nor can he be compelled to give evidence against
himself.
" That no freeman ought to be taken, imprisoned, or disseized of
his freehold, liberties, privileges, or franchises, or outlawed, or
exiled, or in any manner destroyed or deprived of his life, liberty,
or property, but by the trial by jury, or by the law of the land.
" That every freeman restrained of his liberty is entitled to a
remedy, to inquire into the lawfulness thereof, and to remove the
same if unlawful, and that such remedy ought not to be denied or
delayed.
1" That in controversies respecting property, and in suits between
man and man, the ancient trial by jury, as hath been exercised by
us and our ancestors from the time whereof the memory of man
runneth not to the contrary, is one of the greatest securities to the
rights of the people, and ought to remain sacred and inviolable.
" That every freeman ought to obtain right and justice, freely and
without sale, completely and without denial, promptly and without
delay; and that all establishments or regulations contravening these
rights, are oppressive and unjust.
" That exessive bail ought not to be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.
" That every person has a right to be secure from all unreasonable
searches and seizures of his person, his papers, or his property; and
therefore, that all warrants to search suspected places, to seize any
person, his papers, or his property, without information upon oath
or affirmation of sufficient cause, are grievous and oppressive; and
that all general warrants (or such in which the place or person
suspected are not particularly designated) are dangerous, and
ought not to be granted.
" That the people have a right to freedom of speech, and of writing and publishing their sentiments. That freedom of the press




ADOPTION OF THE CONSTITUTION.              523
is one of the greatest bulwarks of liberty, and ought not to be violated.
"That the people have a right to keep and bear arms; and that
at all times, the military should be under strict subordination to
the civil power."
The consequence of these earnest and firm representations of the
States was that at the first session of the first Congress under
the Constitution the following resolution was adopted:
"' CONGRESS OF THE UNITED STATES;
"Begun and held at the City of New York, on Wednesday, the
4th of March, 1789.
" The conventions of a number of the States having, at the time
of their adopting of the Constitution, expressed a desire, in order to
prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added; and as extending the
ground of public confidence in the government will best insure the
beneficent ends of its institution;" Resolved, by the Senate and House of Representatives of the
United States of America, in Congress assembled, two thirds of
both houses concurring, that the following Articles be proposed to
the Legislatures of the several States, as amendments to the Constitution of the United States, all or any of which articles, when
ratified by three fourths of the legislatures, to be valid, to all intents
and purposes, as part of the said Constitution, namely," Articles in Addition to, and Amendment of the Constitution
of the United States of America, proposed by Congress, and ratified
by the Legislatures of the several States, pursuant to the Fifth
Article of the original Constitution."
Here follow twelve articles, of which all but the first two will
be found among the amendments appended to the Constitution at
the end of this chapter, where they are numbered from I. to X. included. The first two articles, which were not ratified by the legislatures of the States, were intended to restrict the number of members of the House of Representatives, and to prevent the compensation of members from being varied during the term of the members
who might alter it. The importance of the amendments adopted is




524           ADOPTION OF THE CONSTITUTION.
beyond expression. Overridden and despised as they have been by
the present Adminstration, they stand still upon the record, an imperishable monument of the wisdom of the framers of the Constitution, and the perjury of those who, having sworn to support,
maintain, and defend them, have presumed to trample their inestimable articles under the foot of factious tyranny.  The Constitution,
as originally made, formed a framework of free government. The
amendments to it aimed to hinder its perversion to the purposes of
arbitrary power.  It is to the amendments we must look for our
guarantee of the enjoyment of religious liberty; freedom of speech
and of the press; the right of peaceable assembly, of petitioning
the Government for the redress of grievances, of keeping and bearing arms; immunity from the quartering of soldiers in private houses
in time of peace; the right of freedom from unreasonable searches
and seizures, under any warrant issued otherwise than upon probable
cause, supported by oath or affirmation, and particularly describing
the place to be searched, and the persons or things to be seized; the
right, before imprisonment or trial for crime, of open indictment by
a grand jury, and of trial once only for the same offence, by due
process of law; the right, in all criminal prosecutions, of trial by
jury in the State and district where the crime may have been committed, with all the safeguards to innocence afforded by the common
law; the right of jury trial in all civil suits where the value in
controversy is more than twenty dollars, and to claim the inestimable privileges of the common law in every court of the United
States; the right to the accused of freedom from excessive bail, and
even to the convict of immunity from excessive fines and cruel or
unusual punishments. These blessed provisions of the amendments
to the Constitution are beyond price to the private citizen.  The
States are under no less obligation to them.  For the ninth and
tenth amendments look to their security, providing that the enumeration in the Constitution of certain rights shall not be construed to
deny or to disparage others retained by the people; and that 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.
At the first session of the third Congress, assembled in 1793,




ADOPTION OF THE CONSTITUTION.              525
what stands as the eleventh amendment of the Constitution was
proposed by Congress, but from various delays on the part of the
State legislatures, it was not ratified until the end of the year 1797.
At the first session of the eighth Congress, in 1803, the twelfth
amendment was proposed, and became part of the Constitution in
1804.
We mus.t here conclude our hasty and imperfect outline of the
history of free government in England and of its establishment in
the United States. We have traced the long and doubtful battle
of the manly spirit of the Saxon race against a haughty subjugating
power. We have seen it groaning under the yoke of feudal despotism. We have seen the Norman masters joining with their
Saxon subjects in resisting the abominable tyrannies of regal power.
WTe have traced the rise of a free representative assembly of the
commons as an equal, in the English Parliament, with the House
of Peers, and even with the crown. We have contrasted the opposite and hostile institutions of trial by jury and the king's court of
Star Chamber. We have seen the folly of an idle and unwise
attempt at summary and forced emancipation, in the natural extinction of Saxon slavery in England. We have witnessed the tremendous struggle of prerogative with freedom in the Stuart reigns,
and the complete and permanent establishment of English liberty
by the revolution which dethroned that most unhappy race. In all
this survey of the steps by which the English Constitution has been
brought into its present noble form, we have set up conspicuously
the landmarks of our English forefathers    MIagna Charta, the
Petition of Right, the Bill of Rights, and Act of Settlement —those
glorious monuments of the determined progress of a generous race,
which are our boast no less than the glory of our brethren on the
other side of the Atlantic —we have set up as beacon lights to point
the way of safety or destruction. We have shown the earnestness
with which their guarantees were claimed by our colonial ancestors
in their controversy with the mother country, and that the denial
of them by the Parliament was the sole cause of the American
Revolution.  We have traced the progress of the Union from the
first assembling of colonial delegates in Philadelphia to the final
ratification of the Constitution by the legislatures of thirteen




526           ADOPTION OF THE CONSTITUTION.
sovereign and independent States. And here the first part of our
task ends. The discussion of the principles inherent in free government in general, as well as the particular provisions of our own
incomparable system, we reserve to the next portion of our work.
We give no theory of the Constitution.  On that subject let our
fathers speak, while we in reverence listen to their words of wisdom,
some of which we shall present hereafter. It affords no happy
augury of the impending future of our country that so many and
conflicting theories of the intention of the Constitution have been
published by so many men, both wise and unwise.
It is impossible to close this outline of the features of the past
without a dark foreboding of the coming future.  We started with
the wisdom of a thousand years to guide us. In three quarters of
a century we have outlived our own free institutions. In three
years we have perhaps destroyed them. It requires a stout heart
to pursue the theme. What will be the future of America, or how
the pen of the historian will trace the swiftly coming destinies of
us and our posterity, what human wisdom can foretell? No other
people ever yet surrendered liberty to power and afterwards regained it, without suffering a fearful retribution, to be expiated only by
unmeasured torrents of its noblest blood. It is hoping much to
dream that we alone of all the world can pass unscathed though the
appalling circumstances that surround us.  Perhaps before these
lines shall issue from the press, the muse of history may have recorded the destruction of the liberties of a free people by its own
hand.




OF THE
UNITED STATES OF AMERICA.
WE the People of the United States, in order to form a more perfect Union, establish Justice, insure domestic Tranquillity, provide
for the common defence, promote the general Welfare, and secure
the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this CONSTITUJTION for the United States of
America.
ARTICLE. I.
SECTION. 1.  All legislative Powers herein granted shall be
vested in a Congress of the United States, which shall consist of a
Senate and House of Representatives.
SECTION. 2.'The House of Representatives shall be composed
of Members chosen every second Year by the People of the several
States, and the Electors in each State shall have the Qualifications
requisite for Electors of the most numerous Branch of the State
Legislature.
2No Person shall be a Representative who shall not have attained
to the Age of twenty five Years, and been seven Years a Citizen of
the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.
"Representatives and direct Taxes shall be apportioned among
the several States which may be included within this Union, according to their respective numbers, which shall be determined by adding
to the whole Number of free Persons, including those bound to
Service for a Term of Years, and excluding Indians not taxed, three
fifths of all other Persons. The actual Enumeration shall be made




528         CONSTITUTION OF THE UNITED STATES,
within three Years after the first Meeting of the Congress of the
United States, and within every subsequent Term of ten Years, in
such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each
State shall have at Least one Representative; and until such
enumeration shall be made, the State of New Hampshire shall be
entitled to chuse three, Massachusetts eight, Rhode Island and
Providence Plantations one, Connecticut five, New-York six, New
Jersey four, Pennsylvania eight, Delaware one, Maryland six, Verginia ten, North Carolina five, South Carolina five, and Georgia
three.
4When vacancies happen in the Representation from any state,
the Executive Authority thereof shall issue Writs of Election to fill
such Vacancies.
5The House of Representatives shall chuse their Speaker and
other Officers; and shall have the sole Power of Impeachment.
SECTION. 3.'The Senate of the United States shall be composed
of two Senators from each State, chosen by the Legislature thereof,
for six Years; and each Senator shall have one Vote.'Immediately after they shall be assembled in Consequence of
the first Election, they shall be divided as equally as may be into
three Classes. The Seats of the Senators of the first Class shall be
vacated at the Expiration of the second Year, of the second Class
at the Expiration of the fourth Year, and of the third Class at the
Expiration of the sixth Year, so that one-third may be chosen every
second Year; and if Vacancies happen by Resignation, or otherwise,
during the Recess of the Legislature of any State, the Executive
thereof may make temporary Appointments until the next Meeting
of the Legislature, which shall then fill such Vacancies.
3No Person shall be a Senator who shall not have attained to
the Age of thirty Years, and been nine Years a Citizen of the United
States, and who shall not, when elected, be an Inhabitant of that
State for which he shall be chosen.
4The Vice President of the United States shall be President of
the Senate, but shall have no Vote, unless they be equally divided.'The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when
he shall exercise the Office of President of the United States.




CONSTITUTION OF THE UNITED STATES.           529
6The Senate shall have the sole Power to try all Impeachments.
When sitting for that Purpose, they shall be on Oath or Affirmation.  When the President of the United States is tried, the Chief
Justice shall preside.  And no Person shall be convicted without
the Concurrence of two thirds of the Members present.'Judgment in Cases of Impeachment shall not extend further
than to removal from Office, and Disqualification to hold and enjoy
any Office of honour, Trust or Profit under the United States: but
the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
SECTION. 4.'The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each
State by the Legislature thereof; but the Congress may at any
time by Law make or alter such Regulations, except as to the places
of chusing Senators.'The Congress shall assemble at least once in every Year, and
such Meeting shall be on the first Monday in December, unless
they shall by Law appoint a different Day.
SECTION. 5.'Each House shall be the Judge of the Elections,
Returns and Qualifications of its own Members, and a Majority of
each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under
such Penalties as each House may provide.'Each House may determine the Rules of its Proceedings, punish
its Members for disorderly Behaviour, and, with the Concurrence of
two thirds, expel a Member.'Each House shall keep a Journal of its Proceedings, and from
time to time publish the same, excepting such Parts as may in their
Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth
of those Present, be entered on the Journal.
4Neither House, during the Session of Congress, shall, without
the Consent of the other, adjourn for more than three days, nor to
any other Place than that in which the two Houses shall be sitting.
SECTION. 6.'The Senators and Representatives shall receive a
Compensation for their Services, to be ascertained by Law, and
23




530        CONSTITUTION OF THE UNITED STATES.
paid out of the Treasury of the United States. They shall in all
Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their
respective Houses, and in going to and returning from the same;
and for any Speech or Debate in either House, they shall not be
questioned in any other Place.'No Senator or Representative shall, during the Time for which
he was elected, be appointed to any civil Office under the Authority
of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no
Person holding any Office under the United States, shall be a Member of either House during his Continuance in office.
SECTION. 7.'All Bills for raising Revenue shall originate in the
House of Representatives; but the Senate may propose or concur
with Amendments as on other Bills.
"Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to
the President of the United States; If he approve he shall sign it.
but if not he shall return it, with his Objections to that House in
which it shall have originated, who shall enter the Objections at
large on their Journal, and proceed to reconsider it. If after such
Reconsideration two thirds of that House shall agree to pass the
Bill, it shall be sent, together with the Objections, to the other
House, by which it shall likewise be reconsidered, and if approved
by two thirds of that House, it shall become a Law. But in all
such Cases the Votes of both Houses shall be determined by yeas
and Nays, and the Names of the Persons voting for and against the
Bill shall be entered on the Journal of each House respectively. If
any Bill shall not be returned by the President within ten Days
(Sundays excepted) after it shall have been presented to him, the
Same shall be a law, in like Manner as if he had signed it, unless
the Congress by their Adjournment prevent its Return, in which
Case it shall not be a Law.
3Every Order, Resolution, or Vote to which the Concurrence
of the Senate and House of Representatives may be necessary
(except on a question of Adjournment) shall be presented to the
President of the United States; and before the Same shall take




CONSTITUTION OF THE UNITED STATES.          531
Effect, shall be approved by him, or being disapproved by him,
shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in
the Case of a Bill.
SECTION. 8. The Congress shall have Power'To lay and collect Taxes, Duties, Imposts and Excises, to pay
the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall
be uniform throughout the United States;'To borrow Money on the credit of the United States;
3To regulate Commerce with foreign Nations, and among the
several States, and with the Indian Tribes;
4To establish an uniform Rule of Naturalization, and uniform
Laws on the subject of Bankruptcies throughout the United States;
STo coin Money, regulate the Value thereof, and of foreign Coin,
and fix the Standard of Weights and Measures;
6To provide for the Punishment of counterfeiting the Securities
and current Coin of the United States;
7To establish Post Offices and post Roads;
sTo promote the progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right
to their respective Writings and Discoveries;
9To constitute Tribunals inferior to the supreme Court;
"~To define and punish Piracies and Felonies committed on the
high Seas, and Offences against the Law of Nations;
"To declare War, grant Letters of Marque and Reprisal, and
make Rules concerning Captures on Land and Water;'2To raise and support Armies, but no Appropriation of Money
to that Use shall be for a longer Term than two Years;'3To provide and maintain a Navy;'4To make Rules for the Government and Regulation of the land
and naval Forces;'5To provide for calling forth the Militia to execute the Laws of
the Union, suppress Insurrections and repel Invasions;'6To provide for.organizing, arming, and disciplining, the Militia,
and for governing such Part of them as may be employed in the
Service of the United States, reserving to the States respectively,




532         CONSTITUTION OF THE UNITED STATES.
the Appointment of the Officers, and the Authority of training the
Militia according to the Discipline prescribed by Congress;'7To exercise exclusive Legislation in all Cases whatsoever, over
such District (not exceeding ten Miles square) as may, by Cession
of particular States, and the Acceptance of Congress, become the
Seat of the Government of the United States, and to exercise like
Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of
Forts, Magazines, Arsenals, Dock-Yards, and other needful Buildings;-And'8To make all Laws which shall be necessary and proper for
carrying into Execution the foregoing Powers, and all other Powers
vested by this Constitution in the Government of the United States,
or in any Department or Officer thereof.
SECTION. 9.'The Migration or Importation of such Persons as
any of the States now existing shall think proper to admit, shall
not be prohibited by the Congress prior to the Year one thousand
eight hundred and eight, but a Tax or Duty may be imposed on
such Importation, not exceeding ten dollars for each Person.'The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public
Safety may require it.
3No Bill of Attainder or ex post facto Law shall be passed.
4No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be
taken.
5No Tax or Duty shall be laid on Articles exported from any
State.
6No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another:
nor shall Vessels bound to, or from, one State, be obliged to enter,
clear, or pay Duties in another.
7No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement
and Account of the Recipts and Expenditures of all public Money
shall be published from time to time.
sNo Title of Nobility shall be granted by the United States:




CONSTITUTION OF THE UNITED STATES.              533
And no Person holding any Office of Profit or Trust under them,
shall, without the Consent of the Congress, accept of any present,
Emolument, Office, or Title, of any kind whatever, from any King,
Prince, or foreign State.
SECTION. 10.'No State shall enter into any Treaty, Alliance,
or Confederation; grant Letters of Marque and Reprisal; coin
Money; emit Bills of Credit; make any Thing but gold and silver
Coin a Tender in Payment of Debts; pass any Bill of Attainder,
ex post facto Law, or Law impairing the Obligation of Contracts,
or grant any Title of Nobility.'No State shall, without the consent of the Congress, lay any
Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net
Produce of all Duties and Imposts, laid by any State on Imports or
Exports, shall be for the Use of the Treasury of the United States;
and all such Laws shall be subject to the Revision and Controul of
the Congress.
3No State shall, without the Consent of Congress, lay any Duty
of Tonnage, keep Troops, or Ships of War in time of Peace, enter
into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such
imminent Danger as will not admit of Delay.
ARTICLE. II.
SECTION. 1.'The executive Power shall be vested in a President of the United States of America. He shall hold his Office
during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows'Each State shall appoint, in such Manner as the Legislature
thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States,
shall be appointed an Elector.
[* The Electors shall meet in their respective States, and vote by Ballot for
two Persons, of whom one at least shall not be an Inhabitant of the same State
* This clause within brackets has been superseded and annulled by the 12th amendment, on page 542.




534          CONSTITUTION OF THE UNITED STATES.
with themselves. And they shall make a List of all the Persons voted for, and
of the Number of Votes for each; which List they shall sign and certify, and
transmit sealed to the Seat of the Government of the United States, directed to
the President of the Senate. The President of the Senate shall, in the Presence
of the Senate and House of Representatives, open all the Certificates, and the
Votes shall then be counted. The Person having the greatest Number of Votes
shall be the President, if such Number be a Majority of the whole Number of
Electors appointed; and if there be more than one who have such Majority,
and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a
Majority, then from the five highest on the List the said House shall in like Manner
chuse the President. But in chusing the President, the Votes shall be taken by
States, the Representation from each State having one Vote; A Quorum for this
Purpose shall consist of a Member or Members from two thirds of the States, and
a Majority of all the States shall be necessary to a Choice. In every Case, after
the Choice of Ihe President, the Person having the greatest Number of Voles
of the Electors shall be the Vice President. But if there should remain two or
more who have equal Votes, the Senate shall chuse from them by Ballot the
Vice President.]
3The Congress may determine the Time of chusing the Electors,
and the Day on which they shall give their Votes; which Day shall
be the same throughout the United States.
4No Person except a natural born Citizen, or a Citizen of the
United States, at the time of the Adoption of this Constitution, shall
be eligible to the Office of President; neither shall any Person be
eligible to that Office who shall not have attained to the Age of
thirty five Years, and been fourteen Years a Resident within the
United States.'In Case of the Removal of the President from Office, or of his
Death, Resignation, or Inability to discharge the Powers and Duties
of the said Office, the same shall devolve on the Vice President, and
the Congress may by Law provide for the Case of Removal, Death,
Resignation, or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such
Officer shall act accordingly, until the Disability be removed, or a
President shall be elected.
GThe President shall, at stated Times, receive for his Services,
a Compensation, which shall neither be encreased nor diminished
during the Period for which he shall have been elected, and he shall




CONSTITUTION OF THE UNITED STATES.          535
not receive within that Period any other Emolument from the United
States, or any of them.'Before he enter on the Execution of his Office, he shall take
the following Oath or Affirmation:" I do solemnly swear (or affirm) that I will faithfully execute
"the Office of President of the United States, and will to the best
"of my Ability, preserve, protect and defend the Constitution of
"the United States.
SECTION. 2.'The President shall be Commander in Chief of
the Army and Navy of the United States, and of the Militia of the
several States, when called into the actual Service of the United
States; he may require the Opinion, in writing, of the principal
Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have
Power to grant Reprieves and Pardons for Offences against the
United States, except in Cases of Impeachment.
2He shall have Power, by and with the Advice and Consent of
the Senate, to make Treaties, provided two thirds of the Senators
present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other
public Ministers and Consuls, Judges of the supreme Court, and all
other Officers of the United States, whose Appointments are not
herein otherwise provided for, and which shall be established by
Law: but the Congress may by Law vest the Appointment of such
inferior Officers, as they think proper, in the President alone, in
the Courts of Law, or in the Heads of Departments.
3The President shall have Power to fill up all Vacancies that may
happen during the Recess of the Senate, by granting Commissions
which shall expire at the End of their next Session.
SECTION. 3. He shall from time to time give to the Congress
Information of the State of the Union, and recommend to their
Consideration such Measures as he shall judge necessary and expe.
dient; he may, on extraordinary Occasions, convene both Houses,
or either of them, and in Case of Disagreement between them, with
Respect to the Time of Adjournment, he may adjourn them to such
Time as he shall think proper; he shall receive Ambassadors and
other public Ministers; he shall take Care that the Laws be faith



536         CONSTITUTION OF THE UNITED STATES.
fully executed, and shall Commission all the officers of the United
States.
SECTION. 4. The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high
Crimes and Misdemeanors.
ARTICLE. III.
SECTION. 1. The judicial Power of the United States, shall be
vested in one supreme Court, and in such inferior Courts as the
Congress may from time to time ordain and establish.  The Judges,
both of the supreme and inferior Courts, shall hold their Offices
during good Behavior, and shall, at stated Times, receive for their
Services, a Compensation, which shall not be diminished during
their Continuance in Office
SECTION 2.'The judicial Power shall extend to all Cases, in
Law and Equity, arising under this Constitution, the Laws of the
United States, and Treaties made, or which shall be made, under
their Authority; —to all Cases affecting Ambassadors, other public
Ministers, and Consuls;-to all Cases of admiralty and maritime
Jurisdiction;-to Controversies to which the United States shall
be a Party; —to Controversies between two or more States; —between a State and Citizens of another State;-between Citizens of
different States — between Citizens of the same State claiming
Lands under Grants of different States, and between a State, or the
Citizens thereof, and foreign States, Citizens or Subjects.
2In all Cases affecting Ambassadors, other public Ministers and
Consuls, and those in which a State shall be a Party, the supreme
Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under
such Regulations as the Congress shall make.'The Trial of all Crimes, except in Cases of Impeachment,
shall be by Jury; and such Trial shall be held in the State where
the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as
the Congress may by Law have directed.
SECTION. 3.'Treason against the United States, shall consist




CONSTITUTION OF THE UNITED STATES.          537
only in levying War against them, or in adhering to their Enemies,
giving them Aid and Comfort. No Person shall be convicted of
Treason unless on the Testimony of two Witnesses to the same
overt Act, or on Confession in open Court.'The Congress shall have Power to declare the Punishment of
Treason, but no Attainder of Treason shall work Corruption of
Blood, or Forfeiture except during the Life of the Person attainted,
ARTICLE. IV.
SECTION. 1. Full Faith and Credit shall be given in each State to
the public Acts, Records, and judicial Proceedings of every other
State.  And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved,
and the Effect thereof.
SECTION. 2.'The Citizens of each State shall be entitled to all
Privileges and Immunities of Citizens in the several States.
"A Person charged in any State with Treason, Felony, or other
Crime, who shall flee from Justice, and be found in another State,
shall on Demand of the executive Authority of the State from
which he fled, be delivered up, to be removed to the State having
Jurisdiction of the Crime.'No Person held to Service or Labour in one State, under the
Laws thereof, escaping into another, shall, in Consequence of any
Law or Regulation therein, be discharged from such Service or
Labour, but shall be delivered up on Claim of the Party to whom
such Service or Labour may be due.
SECTION. 3.'New States may be admitted by the Congress into
this Union; but no new State shall be formed or erected within
the Jurisdiction of any other State; nor any State be formed by
the Junction of two or more States, or Parts of States, without the
Consent of the Legislatures of the States concerned as well as of
the Congress.
2The Congress shall have Power to dispose of and make all
needful Rules and Regulations respecting the Territory or other
Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United
States, or of ally particular State.
23*




538         CONSTITUTION OF THE UNITED STATES.
SECTION. 4. The United States shall guarantee to every State
in this Union a Republican Form of Government, and shall protect
each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened)
against domestic Violence.
ARTICLE. V.
The Congress, whenever two thirds of both Houses shall deem it
necessary, shall propose Amendments to this Constitution, or, on
the Application of the Legislatures of two thirds of the several
States, shall call a Convention for proposing Amendments, which,
in either Case, shall be valid to all Intents and Purposes, as Part
of this Constitution, when ratified by the Legislatures of three fourths
of the several States, or by Conventions in three fourths thereof, as
the one or the other Mode of Ratification may be proposed by the
Congress; Provided that no Amendment which may be made prior
to the Year one thousand eight hundred and eight shall in any
Manner affect the first and fourth Clauses in the Ninth Section of
the first Article; and that no State, without its Consent, shall be
deprived of its equal Suffrage in the Senate.
ARTICLE. VI.'All Debts contracted and Engagements entered into, before
the Adoption of this Constitution, shall be as valid against the
United States under this Constitution, as under the Confederation.'This Constitution, and the Laws of the United States which
shall be made in Pursuance thereof; and all Treaties made, or which
shall be made, under the authority of the United States, shall be
the supreme Law of the Land; and the Judges in every State shall
be bound thereby, any Thing in the Constitution or Laws of any
State to the Contrary notwithstanding.
3The Senators and Representatives before mentioned, and the
Members of the several State Legislatures, and all executive and
judicial Officers, both of the United States and of the several States,
shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification
to any Office or public Trust under the United States.
ARTICLE. VII.
The Ratification of the Conventions of nine States, shall be suf



CONSTITUTION OF THE UNITED STATES.           539
ficient for the Establishment of this Constitution between the States
so ratifying the Same.
DONE in Convention by the Unanimous Consent of the States
present the Seventeenth Day of September in the Year
of our Lord one thousand seven hundred and Eighty seven
and of the Independance of the United States of America
the Twelfth.  in  Witness whereof We have hereunto
subscribed our Names,
GEO WASHINGTONPresdt and deputy from Virginia.
NEW HAMPSHIRE.
JOHN LANGDON,              NICHOLAS GILMAN
MASSACHUSETTS.
NATHANIEL GORHAM,          RUFUS KING
CONNECTICUT.
WM. SAML. JOHNSON,         ROGER SHERMAN.
NEW YORK.
ALEXANDER HAMILTON.
NEW JERSEY.
WIL: LIVINGSTON,           DAVID BREARLEY,
WM. PATERSON,             JONA. DAYTON.
PENNSYLVANIA.
B. FRANKLIN,               THOMAS MIFFLIN,
ROBT. MORRIS,              GEO: CLYMER,
THO: FITSIMONS,            JARED INGERSOLL,
JAMES WILSON,              GOUv: MORRIS.
DELAWARE.
GEO: READ,                 GUNNING BEDFORD, Jun'r,
JOHN DICKINSON,            RICHARD BASSETT,
JACO: BROOM.
MARYLAND.
JAMES M'HENRY,             DAN: OF ST. THoS. JENIFER,
DANL. CARROLL.
VIRGINIA.
JOHN BLAIR,                JAS. MADISON, Jr.,
NORTH CAROLINA.
WM. BLOUNT,                RICH'D DOBBS SPAIGHT,
HIU. WILLIAMSON.
SOUTH CAROLINA.
J. RUTLEDGE,               CHARLES COTESWORTH PINCKNEY,
CHARLES PINCKNEY;         PIERCE BUTLER.
GEORGIA.
WILL1AM FEW,              ABR. BALDWIN.
Attest:                  WILLIAM JACKSON, Secretary.




ARTICLES
IN ADDITION TO, AND AMENDMENT OF,
THE CONSTITUTION
OF THE
UNITED STATES OF AMERICA.
Proposed by Congress, and ratified by the Legislatures of the several
States, pursuant to the fifth article of the original Constitution.
(ARTICLE 1.)
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the
freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of
grievances.
(ARTICLE II.)
A well regulated Militia, being necessary to the security of a
free State, the right of the people to keep and bear Arms, shall not
be infringed.
(ARTICLE III.)
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.
(ARTICLE IV.)
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 persons or things to be seized.




AMENDMENTS.                      541
(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 or 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 and 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.
(ARTICLE VIII.)
Excessive bail shall not be required, nor excessive fines imposed,
nor cruel and unusual punishments inflicted.
(ARTICLE IX.)
The enumeration in 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.




542         CONSTITUTION OF THE UNITED STATES.
(ARTICLE XII.)
The Judicial power of the United States shall not be construed
to extend to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State, or by
Citizens or Subjects of any Foreign State.
(ARTICLE XII.)
The Electors shall meet in their respective states, and vote by
ballot for President and Vice-President, one of whom, at least, shall
not be an inhabitant of the same state with themselves; they shall
name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall
make distinct lists of all persons voted for as President, and of all
persons voted for.as Vice-President, and of the number of votes for
each, which lists they shall sign and certify, and transmit sealed to
the seat of the government of the United States, directed to the
President of the Senate;-The President of the Senate shall, in
presence of the Senate and House of Representatives, open all the
certificates and the votes shall then be counted;-The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors
appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of
those voted for as President, the House of Representatives shall
choose immediately, by ballot, the President. But in choosing the
President, the votes shall be taken by states, the representation
from each state having one vote; a quorum for this purpose shall
consist of a member or members from two-thirds of the states, and
a majority of all the states shall be necessary to a choice.  And if
the House of Representatives shall not choose a President whenever
the right of choice shall devolve upon them, before the fourth day
of March next following, then the Viee-President shall act as President, as in the case of the death or other constitutional disability of
the President.  The person having the greatest number of votes as
Vice-President, shall be the Vice-President, if such number be a
majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list,
the Senate shall choose the Vice-President; a quorum for the pur



AMENDMENTS.                           543
pose shall consist of two-thirds of the whole number of Senators,
and a majority of the whole number shall be necessary to a choice.
But no person constitutionally ineligible to the office of President
shall be eligible to that of Vice-President of the United States.
The following is prefixed to the first ten * of the preceding amendments.
CONGRESS OF THE UNITED STATES,
Begun and held at the City of New York, on Wednesday, the fourth of March,
one thousand seven hundred and eighty-nine.
The Conventions of a number of the States, having at the time
of their adopting the Constitution, expressed a desire, in order to
prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending
the ground of public confidence in the Government, will best insure
the beneficent end of its institution;
Resolved by the Senate and louse of Representatives of the United
States of America, in Congress assembled, two thirds of both Houses
concurring, That the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of
the United States, all, or any of which articles, when ratified by
three-fourths of the said Legislatures, to be valid to all intents and
purposes, as part of the said Constitution; viz.
Articles in addition to, and Amendment of the Constitution of
* It may be proper here to state that 12 articles of amendment were proposed
by the first Congress, of which but 10 were ratified by the States-the first and
second in order not having been ratified by the requisite number of States.
These two were as follows:
Article the first.... After the first enumeration required by the first Article of
the Constitution, there shall be one Representative for every thirty thousand, until
the number shall amount to one hundred, after which, the proportion shall be so regulated by Congress, that there shall not be. less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until
the number of Representatives shall amount to two hundred, after which the pro.
portion shall be so regulated by Congress, that there shall not be less than two
hundred Representatives, nor more than one Representative for every fifty thousand persons.
Article second....No law, varying the compensation for the services of the
Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.




544         CONSTITUTION OF THE UNITED STATES.
the United States of America, proposed by Congress, and ratified
by the Legislatures of the several States pursuant to the fifth article
of the original Constitution.
The first ten amendments of the Constitution were ratified by
the States, as follows, viz.:
By New Jersey, 20th November, 1789.
By Maryland, 19th December, 1789.
By North Carolina, 22d December, 1789.
By South Carolina, 19th January, 1790.
By New Hampshire, 25th January, 1790.
By Delaware, 28th January, 1790.
By Pennsylvania, 10th March, 1790.
By New York, 27th March, 1790.
By Rhode Island, 15th June, 1790.
By Vermont, 3 November, 1791.
By Virginia, 15 December, 1791.
Thefollowing is prefixed to the eleventh of the preceding amendments:
THIRD CONGRESS OF THE UNITED STATES:
A4t the first session, begun and held at the city of Philadelphia, in the
State of Pennsylvania, on Monday the second of December, one thousand seven hundred and ninety-three.
Resolved by the Senate and House of Representatives of the United
States of America, in Congress assembled, two thirds of both Houses
concurring, That the following Article be proposed to the Legislatures of the several States, as an amendment to the Constitution of
the United States; which when ratified by three-fourths of the
said Legislatures shall be valid as part of the said Constitution, viz.:
The following is prefixed to the twelfth of the preceding amendments:
EIGHTH CONGRESS OF THE UNITED STATES:
At thefirst session, beqzn and held at the city of Washington, in the
Territory of Columbia, on Monday the seventeenth of October, one thousand eight hnndred and three:
Resolved by the Senate and House of Representatives of the United
States of America, in Congress assembled, Two thirds of both
Houses concurring, that in lieu of the third paragraph of the first
section of the second article of the Constitution of the United States,




AIENDMENTS.                      545
the following be proposed as an amendment to the Constitution of
the United States, which when ratified by three-fourths of the
legislatures of the several states, shall be valid to all intents and
purposes, as part of the said Constitution, to wit:
The ten first of the preceding amendments were proposed at the
first session of the first Congress, of the United States, 25 September,
1789, and were finally ratified by the constitutional number of
States, on the 15th day of December, 1791. The eleventh amendment was proposed at the first session of the third Congress, 5
March, 1794, and was declared in a message from the President of
the United States to both houses of Congress, dated 8th January,
1798, to have been adopted by the constitutional number of States.
The twelfth amendment was proposed at the first session of the
eighth Congress, 12 December, 1803, and was adopted by the constitutional number of States in 1804, according to a public notice
thereof by the Secretary of State, dated 25th September, of the
same year.




ADDENDA TO PART SECOND.
[AT a time when the very foundation of government is shaken, and the edifice
of constitutional freedom tottering, few treatises can be read with greater profit than
those of Locke " On Government;" from which, therefore, we have determined to present the following extracts. And at a time when the United States are occupying to.
wards the Confederate States, an attitude almost identical with that assumed towards
us by England in the Revolutionary War, it cannot be amiss to show how one of the
wisest and noblest of English statesmen-Burke-proposed to deal with the revolted
colonies. On this account we give here an abridgment of his greatest speech on American affairs.]
LOCKE ON GOVERNMENT.
OBJECTS OF GOVERNMENT-ARBITRARY POWER COMPARED WITH A GOVERNMENT OF
LAWS-CONSENT AND FORCE-CONQUEST-RIGHT OF THE CONQUERED-LIMITS
OF THE RIGHT WHICH CAN BE OBTAINED BY A RIGHTFUL CONQUEROR-OVER
HIS OWN PEOPLE-OVER THE VANQUISHED-THE LATTER DESPOTICAL-BUT NOT
UNIVERSAL IN ITS EXTENT-NOT INCLUDING THE PROPERTY OF THE VANQUISHED,
WHICH IS HIS CHILDREN'S -BUT ONLY THE LIVES OF THOSE ACTUALLY ENGAGED IN WAR-THESE PROPOSITIONS LOGICALLY DISCUSSED-RIGHT OF REBELLION RESERVED TO THE CONQUERED EVEN AFTER FORCED CONSENT TO THE VICTOR'S AUTHORITY-THIS RIGHT AN INDEFEASIBLE INHERITANCE OF THEIR POSTERITY-CASE OF THE GREEK CHRISTIANS-SUMMARY-CASE OF HEZEKIAHARBITRARY RULERS PUT THEMSELVES INTO A STATE OF WAR WITH THE PEOPLE
-THEREBY ABSOLVING THEM FROM ALLEGIANCE-THE PEOPLE NOT DISPOSED TO
REVOLUTION-THE RIGHT OF REVOLUTION AND REBELLION-WHEN IT EXISTSOBJECTIONS ANSWERED.
THIOUGH men, when they enter into society, give up the equality,
liberty, and executive power they had in the state of nature, into
the hands of the society, to be so far disposed of by the legislative
as the good of the society shall require; yet it being only with an
intention in every one the better to preserve himself, his liberty,
and property (for no rational creature can be supposed to change
his condition with an intention to be worse); the power of the so



ADDENDA.                      547
ciety or legislative constituted by them, can never be supposed to
extend farther than the common good; but is obliged to secure
every one's property by providing against those three defects above
mentioned, that made the state of nature so unsafe and uneasy. And
so whoever has the legislative or supreme power of any common.
wealth is bound to govern by established standing laws, promulgated
and known to the people, and not by extemporary decrees; by indifferent and upright judges, who are to decide controversies by those
laws; and to employ the force of the community at home only in the
execution of such laws; or abroad to prevent or redress foreign injuries, and secure the community from inroads and invasion. And
all this to be directed to no other end but the peace, safety, and
public good of the people.
Absolute arbitrary power, or governing without settled standing laws, can neither of them consist with the ends of society and
government, which men could not quit the freedom of the state of
nature for, and tie themselves up under, were it not to preserve
their lives, liberties, and fortunes, and by stated rules of right and
property to secure their peace and quiet. It cannot be supposed
that they should intend, had they a power so to do, to give to any
one or more, an absolute arbitrary power over their persons and
estates, and put a force in the magistrate's hand to execute his unlimited will arbitrarily upon them. This were to put themselves
in a worse condition than the state of nature, wherein they had a
liberty to defend their right against the injuries of others, and
were upon equal terms of force to maintain it, whether invaded by
a single man or many in combination.  Whereas by supposing they
have given up themselves to the absolute arbitrary power and will
of a legislator, they have disarmed themselves, and armed him, to
make a prey of them when he pleases; he being in a much worse
condition who is exposed to the arbitrary power of one man, who
has the command of one hundred thousand, than he that is-exposed
to the power of one hundred thousand single men; nobody being
secure, that his will, who has such a command, is better than that of
other men, though his force be one hundred thousand times stronger.
And therefore whatever form the commonwealth is under, the ruling
power ought to govern by declared and received laws, and not by extem.




548                        ADDENDA.
porary dictates and undetermined resolutions; for then mankind will be
in a far worse condition than in the state of nature, if they shall have
armed one or a few men with the joint power of a multitude, to force
them to obey at pleasure the exorbitant and unlimited decrees of
their sudden thoughts, or unrestrained, and till that moment unknown
wills, without having any measures set down which may guide and
justify their actions; for all the power the government has being only
for the good of society, as it ought not to be arbitrary and at pleasure,
so it ought to be exercised by established and promulgated laws; that
both the people may know their duty, and be safe and secure within the limits of the law; and the rulers too kept within their bounds,
and not be tempted by the power they have in their hands to employ it to such purpose, and by such measures, as they would not
have known, and own not willingly.-LocKE, vol. v. pp. 420, 421.
Though governments can originally have no other rise than that
before mentioned, nor politics be founded on anything but the consent
of the people; yet such have been the disorders ambition has filled
the world with, that in the noise of war, which makes so great a
part of the history of mankind, this consent is little taken notice of;
and, therefore, many have mistaken the force of arms for the consent
of the people, and reckon conquest as one of the originals of governments. But conquest is so far from setting up any government,
as demolishing a house is from building a new one in its place.
Indeed it often makes way for a new frame of commonwealth by destroying the former; but without the consent of the people, can
never erect a new one.
That the aggressor, who puts himself into the state of war with
another, and unjustly invades another man's right, can, by such an
unjust war, never come to have a right over the conquered, will be
easily agreed by all men, who will not think that robbers and
pirates have a right of empire over whomsoever they have force
enough to master; or that men are bound by promises, which unlawful force extorts from them. Should a robber break into my
house, and, with a dagger at my throat, make me seal deeds to convey my estate to him, would this give him any title?  Just such a
title by his sword has an unjust conqueror who forces me into submission. The injury and the crime are equal, whether committed




ADDENDA.                        549
by the wearer of a crown, or some petty villain. The title of
the offender, and the number of his followers make no difference in
the offence, unless it be to aggravate it. The only difference is,
great robbers punish little ones, to keep them in their obedience;
but the great ones are rewarded with laurels and triumphs; because
they are too big for the weak hands of justice in this world, and
have the power in their own possession, which should punish offenders. What is my remedy against a robber that so broke into
my house? Appeal to the law for justice.
But the conquered, or their children, have no court, no arbitrator on earth to appeal to. Then they may appeal, as Jephthah
did, to Heaven, and repeat their appeal till they have recovered the
native right of their ancestors, which was to have such a legislative
over them as the majority should approve, and freely acquiesce in.
But supposing victory favors the right side, let us consider a
conqueror in a lawful war, and see what power he gets, and over
whom. First, it is plain, " he gets no power by his conquest over
those that conquered with him."  They that fought on his side
cannot suffer by the conquest, but must at least be as much freemen as they were before. And most commonly they serve upon
terms, and on conditions to share with their leader, and enjoy a part
of the spoil, and other advantages that attended the conquering
sword; or at least have a part of the subdued country bestowed
upon them.  And " the conquering people are not, I hope, to be
slaves by conquest," and wear their laurels only to show they are
sacrifices to their leader's triumph.
Secondly, I say then the conqueror gets no power but only over
those who have actually assisted, concurred, or consented to that
unjust force that is used against him; for the people having given
to their governors no power to do an unjust war (for they never had
such a power in themselves), they ought not to be charged as guilty
of the violence and injustice that is committed in an unjust war, any
farther than they actually abet it; no more than they are to be
thought guilty of any violence or oppression their governors should
use upon the people themselves, or any part of their fellow subjects, they having impowered them no more to the one than to
the other.




550                       ADDENDA.
The conqueror's power over the lives of the conquered being
only because they have used force to do or maintain an injustice,
he can have that power only over those who have concurred in that
force; all the rest are innocent; and he has no more title over the
people of that country, who have done him no injury, and so have
made no forfeiture of their lives, than he has over any other, who,
without any injuries or provocations, have lived upon fair terms
with him.
Thirdly, the power a conqueror gets over those he overcomes in
a just war, is perfectly despotical; he has an absolute power over
the lives of those, who, by putting themselves in a state of war,
have forfeited them; but he has not thereby a right and title to
their possessions.
Though in all war there be usually a complication of force
and damage, and the aggressor seldom fails to harm the estate,
when he uses force against the persons of those he makes war
upon; yet it is the use of force only that puts a man into the state
of war.
It is the " unjust use of force that puts a man into the state
of war " with another; and thereby he that is guilty of it makes
a forfeiture of his life; for quitting reason, which is the rule given
between man and man, and using force, the way of beasts, he becornes
liable to be destroyed by him he uses force against, as any savage
ravenous beast, that is dangerous to his being.
But because the miscarriages of the father are no faults of the
children, and they may be rational and peaceable, notwithstanding
the brutishness and injustice of the father; the father, by his miscarriages and violences, can forfeit but his own life, but involves
not his children in his guilt or destruction. His goods, which
nature, that willeth the preservation of all mankind as much as is
possible, hath made them to belong to the children to keep them
from perishing, do still belong to his children: for supposing them
not to have joined in the war, either through infancy, absence, or
choice, they have done nothing to forfeit them; nor has the conqueror any right to take them away, by the bare title of having
subdued him that by force attempted his destruction; though perhaps he may have some right to them, to repair the damage he has




ADDENDA.                        551
sustained by the war, and the defence of his own right; which how
far it reaches to the possessions of the conquered, we shall see by
and by. So that he that by conquest has a right over a man's
person to destroy him if he pleases, has not thereby a right over
his estate to possess and enjoy it; for it is the brutal force the
aggressor has used, that gives his adversary a right to take away
his life, and destroy him if he pleases as a noxious creature; but
it is damage sustained that alone gives him title to another man's
goods: for though I may kill a thief that sets on me in the
highway, yet I may not (which seems less) take away his money
and let him go: this would be robbery on my side. His force and
the state of war he put himself in, made him forfeit his life, but
gave me no title to his goods. The right then of conquest extends
only to the lives of those who joined in the war, not to their estates,
but only in order to make reparation for the damages received, and
the charges of the war; and that too with the reservation of the
right of the innocent wife and children.
Let the conqueror have as much justice on his side as could be
supposed, he has no right to seize more than the vanquished could
forfeit: his life is at the victor's mercy; and his service and goods
he may appropriate, to make himself reparation; but he cannot
take the goods of his wife and children: they too had a title to the
goods he enjoyed, and their shares in the estate he possessed: for
example, I in the state of nature (and all commonwealths are in
the state of nature one with another) have injured another man,
and refusing to give satisfaction, it comes to a state of war, wherein
my defending by force what I had gotten unjustly makes me the
aggressor.  I am  conquered: my life, it is true, as forfeit, is at
mercy, but not my wife's and children's. They made not the war,
nor assisted in it. I could not forfeit their lives; they were not
mine to forfeit.  My wife had a share in my estate; that neither
could I forfeit. And my children also, being born of me, had a
right to be maintained out of my labor or substance. Here then
is the case: the conqueror has a title to reparation for damages
received, and the children have a title to their father's estate for
their subsistence: for as to the wife's share, whether her labor, or
compact, gave her a title to it, it is plain, her husband could not




552                       ADDENDA.
forfeit what was hers.  What must be done in the case? I answer
the fundamental law of nature being, that all, as much as may be,
should be preserved, it follows, that if there be not enough fully to
satisfy both, viz., for the conqueror's losses and children's maintenance, he that hath and to spare, must remit something of his
full satisfaction, and give way to the pressing and preferable title
of those who are in danger to perish without it.
Over those then that joined with him in the war, and over
those of the subdued country that opposed him not, and the posterity of even those that did, the conqueror even in a just war
hath, by his conquest, no right of dominion: they are free from any
subjection to him, and if their former gov'ernment be dissolved,
they are at liberty to begin and erect another to themselves.
The conqueror, it is true, usually, by the force he has over
them, compels them, with a sword at their breasts, to stoop to
his conditions, and submit to such a government as he pleases to
afford them; but the inquiry is, what right has he to do so? If it
be said, they submit by their own consent, then this allows their
own consent to be necessary to give the conqueror a title to rule
over them. It remains only to be considered, whether promises extorted by force, without right, can be thought consent, and how far
they bind. To which I shall say, they bind not at all; because
whatsoever another gets from me by force, I still retain the right
of, and he is obliged presently to restore. He that forces my horse
from me, ought presently to restore him, and I have still a right to
retake him. By the same reason, he that forced a promise from
me, ought presenty to restore it, i. e., quit me of the obligation of
it: or I may resume it myself, i. e., choose whether I will perform
it; for the law of nature laying an obligation on me only by the
rules she prescribes, cannot oblige me by the violation of her rules:
such is the extorting anything from me by force. Nor does it at
all alter the case to say, " I gave my promise," no more than it excuses the force, and passes the right, when I put my hand in my
pocket, and deliver my purse myself to a thief, who demands it
with a pistol at my breast.
From all which it follows, that the government of a conqueror,
imposed by force on the subdued, against whom he had no right




ADDENDA.                       553
of war, or who joined not in the war against him where he had
right, has no obligation upon them.
But let us suppose that all the men of that community, being
all members of the same body politic, may be taken to have joined
in that unjust war, wherein they are subdued, and so their lives are
at the mercy of the conqueror.
I say this concerns not their children who are in their minority:
for since a father hath not, in himself, a power over the life or
liberty of his child, no act of his can possibly forfeit it. So that
the children, whatever may have happened to the fathers, are
freemen, and the absolute power of the conqueror reaches no
farther than the persons of the men that were subdued by him,
and dies with them: and should he govern them as slaves subjected
to his absolute arbitrary power, he has no such right or dominion
over their children. He can have no power over them but by their
own consent, whatever he may drive them to say or do: and he
has no lawful authority, whilst force, and not choice, compels them
to submission.
The inhabitants of any country, who are descended, and derive
a title to their estates from those who are subdued, and had a
government forced upon them against their free consents, retain a
right to the possession of their ancestors, though they consent not
freely to the government, whose hard conditions were by force imposed on the possessors of that country: for, the first conqueror
never having had a title to the land of that country, the people
who are the descendants of, or claim under those who were forced
to submit to the yoke of a government by constraint, have always
a right to shake it off, and free themselves from the usurpation or
tyranny which the sword had brought in upon them, till their
rulers put them under such a frame of government as they willingly and of choice consent to. Who doubts but the Grecian Chris-'
tians, descendants of the ancient possessors of that country, may
justly cast off the Turkish yoke, which they have so long groaned
under, whenever they have an opportunity to do it? For no government can have a right to obedience from a people who have not
freely consented to it; which they can never be supposed to do,
till either they are put in a full state of liberty to choose their
24




554                      ADDENDA.
government and governors, or at least till they have such standing
laws, to which they have by themselves or their representatives
given their free consent; and also till they are allowed their due
property, which is so to be proprietors of what they have, that
nobody can take away any part of it without their own consent,
without which men under any government are not in the state
of freemen, but are direct slaves under the force of war.
The short of the case in conquest is this: the conqueror, if he
have a just cause, has a despotical right over the persons of all that
actually aided and concurred in the war against him, and a right
to make up his damage and cost out of their' labor and estates, so
he injure not the right of any other.  Over the rest of the people,
if there were any that consented not to the war, and over the
children of the captives themselves, or the possessions of either, he
has no power; and so can have, by virtue of conquest, no lawful
title himself to dominion over them, or derive it to his posterity;
but is an aggressor, if he attempts upon their properties, and
thereby puts himself in a state of war against them: and has no
better a right of principality, he, nor any of his successors, than
Hingar, or Hubba, the Danes, had here in England; or Spartacus,
had he conquered Italy, would have had; which is. to have their
yoke cast off, as soon as God shall give those under their subjection
courage and opportunity to do'it. This, notwithstanding whatever title the kings of Assyria had over Judah, by the sword, God
assisted Hezekiah to throw off the dominion of that conquering
empire. "And the Lord was with Hezekiah and he prospered;
wherefore he went forth, and he rebelled against the king of
Assyria, and served him not." (2 Kings xviii. 7.) Whence it is
plain that shaking off a power, which force and not right hath set
over any one, though it hath the name of rebellion, yet is no
offence before God, but is that which he allows and countenances,
though even promises and covenants, when obtained by force, have
intervened: for it is very probable to any one that reads the story
of Ahaz and Hezekiah attentively, that the Assyrians subdued
Ahaz, and deposed him, and made Hezekiah king in his father's
lifetime; and that Hezekiah by agreement had done him homage,
and paid him tribute all this time.




ADDENDA.                       555
The reason why men enter into society, is the preservation of
their property; and the end why they choose and authorize a legislative, is, that there may be laws made, and rules set, as guards
and fences to the properties of all the members of the society; to
limit the power and moderate the dominion of every part and
member of the society; for since it can never be supposed to be
the will of the society that the legislative should have a power to
destroy that which every one designs to secure by entering into
society, and for which the people submitted themselves to legislators of their own making; whenever the legislators endeavor to
take away and destroy the property of the people, or to reduce
them to slavery under arbitary power, they put themselves into a
state of war with the people, who are thereupon absolved from any
further obedience, and are left to the common refuge, which God
hath provided for all men, against force and violence.  Whensoever therefore the legislative shall transgress this fundamental
rule of society, and either by ambition, fear, folly, or corruption,
endeavor to grasp themselves, or put into the hands of any other,
an absolute power over the lives, liberties, and estates of the
people, by this breach of trust they forfeit the power the people
had put into their hands for quite contrary ends, and it devolves to
the people, who have a right to resume their original liberty, and,
by the establishment of a new legislative (such as they shall think
fit), provide for their own safety and security, which is the end for
which they are in society.
To this perhaps it will be said, that the people being ignorant,
and always discontented, to lay the foundation of government in
the unsteady opinion and uncertain humor of the people, is to
expose it to certain ruin; and no government will be able long to
subsist, if the people may set up a new legislative, whenever they
take offence at the old one. To this I answer, quite the contrary.
People are not so easily got out of their old forms as some are apt
to suggest. They are hardly to be prevailed with to amend the
acknowledged faults in the frame they have been accustomed to.
And if there be any original defects, or adventitious ones introduced by time, or corruption; it is not an easy thing to get them
changed, even when all the world sees there is an opportunity for
it. This slowness and aversion in the people to quit their old




556                       ADDENDA.
constitutions, has in the many revolutions which have been seen in
this kingdom, in this and former ages, still kept us to, or, after some
interval of fruitless attempts, still brought us back again to, our old
legislative of king, lords, and commons; and whatever provocations
have made the crown be taken from some of our princes' heads,
they never carried the people so far as to place it in another line.
This doctrine of a power in the people of providing for their
safety anew, by a new legislative, when their legislators have acted
contrary to their trust, by invading their property, is the best fence
against rebellion, and the probablest means to hinder it; for rebellion being an opposition, not to persons, but authority, which is
founded only in the constitutions and laws of the government;
those, whoever they be, who by force break through, and by
force justify their violation of them, are truly and properly rebels;
for when men, by entering into society and civil government, have
excluded force, and introduced laws for the preservation of pro.
perty, peace, and unity amongst themselves; those who set up
force again in opposition to the laws do rebellare, that is, bring back
again the state of war, and are properly rebels; which they who
are in power (by the pretence they have to authority, the temptation of force they have in their hands, and the flattery of those
about them) being likeliest to do; the properest way to prevent
the evil, is to show them the danger and injustice of it, who are
under the greatest temptation to run into it.
In both the forementioned cases, when either the legislative is
changed, or the legislators act contrary to the end for which they were
constituted,' those who are guilty are guilty of rebellion; for if any
one by force takes away the established legislative of any society,
and the laws by them made pursuant to their trust, he thereby
takes away the umpirage, which every one had consented to, for a
peaceable decision of all their controversies, and a bar to the state
of war amongst them. They, who remove, or change the legislative,
take awayhis decisive power, which nobody can have but by the
appointment and consent of the people; and so destroying the
authority which the people did, and nobody else can set up, and
introducing a power which the people hath not authorized, they
actually introduce a state of war, which is that of force without
authority; and thus, by removing the legislative established by the




ADDENDA.                         55 7
society (in whose decisions the people acquiesced and united, as to
that of their own will), they untie the knot, and expose the people
anew to the state of war.  And if those who by force take away the
legislative, are rebels, the legislators themselves, as has been shown, can
be no less esteemed so; when they, who were set up for the protection
and preservation of the people, their liberties and properties, shall by
force invade and endeavor to take them away; and so they, putting
themselves into a state of war with those who made them the protectors and guardians of their peace, are properly, and with the
greatest aggravation, rebellantes, rebels.
But if they who say, " it lays a foundation for rebellion," mean
that it may occasion civil wars, or intestine broils, to tell the
people they are absolved from obedience when illegal attempts are
made upon their liberties or properties, and may oppose the unlawful violence of those who were their magistrates, when they
invade their properties contrary to the trust put in them; and that
therefore this doctrine is not to be allowed, being so destructive
to the peace of the world: they may as well say, upon the same
ground, that honest men may not oppose robbers or pirates,
because this may occasion disorder or bloodshed. If any mischief
come in such cases, it is not to be charged upon him who defends
his own right, but on him  that invades his neighbor's.  If the
innocent honest man must quietly quit all he has, for peace sake,
to him who will lay violent hands upon it, I desire it may be
considered, what a kind of peace there will be in the world, which
consists only in violence and rapine; and which is to be maintained
only for the benefit of robbers and oppressors. Who would not
think it an admirable peace betwixt the mighty and the mean, where
the lamb without resistance yielded his throat to be torn by the
imperious wolf? Polyphemus's den gives us a perfect pattern of
such a peace, and such a government, wherein Ulysses and his
companions had nothing to do but quietly to suffer themselves to
be devoured. And no doubt Ulysses, who was a prudent man,
preached up passive obedience, and exhorted them to a quiet submission, by representing to them of what concernment peace was to
mankind; and by showing the inconveniences which might happen,
if they should offer to resist Polyphemus, who had now the power
over them.-LocKE, vol. v. 414-474, carptim.




BURKE ON THE AMERICAN WAR.
EXORDIUM —OCCASION OF THE SPEECH-MAGNITUDE OF THE TASK OF RESTORING
ORDER IN AMERICA-BURKE S PROPOSITION IS " PEACE NOT THROUGH TLHE
MEDIUM OF WAR "-7" IT IS SIMPLY PEACE " —WITH THE VIEW OF RESTORING
CONFIDENCE AND PROCURING RECONCILIATION-THE QUESTIONS AT ISSUEOUGHT CONCESSIONS TO BE MADE?-IF SO, WHAT CONCESSIONS?-POSITION OF
THE WAR PARTY —OBJECTIONS-ADVANTAGE GAINED BY FORCE TEMPORARYAMERICA MUSt BE DESTROYED IN PRESERVING IT TO ENGLAND-EXPERIENCE
AGAINST THE USE OF FORCE-AMERICAN TEMPER AND CHARACTER-THE SPIRIT
OF LIBERTY-WORKING OF COLONIAL GOVERNMENT-CONDUCT OF THE GOVERNMENT TOWARDS AMERICA-MEANS OF RECONCILIATION-THE CAUSES OF DISCONTENT MUST BE REMOVED-IMPOSSIBILITY OF SUBJUGATION-INFAMY OF THE
ATTEMPT-UNFITNESS OF ENGLAND FOR THE TASK-THE AMERICAN CHARACTER
FIXED AND UNALTERABLE-SPIRIT OF THE SOUTHERN COLONIES —SLAVES-PROPOSITION OF CRIMINAL PROSECUTIONS AGAINST REBELS-" TOO BIG A THING"
-DEFINITION OF AN EMPIRE-INFERENCE-JUDICIAL POSITION OF ENGLANDHER CONSEQUENT DUTY OF JUSTICE-WHAT HAD BEEN GAINED BY THE MEASURES
OF THE GOVERNMENT?-WHAT CONCESSIONS OUGHT TO BE MADE-COMPLAINT
OF THE COLONIES-TAXATION WITHOUT REPRESENTATION-DUTY OF GOVERNMENT-NECESSITY OF A UNITY OF SPIRIT-THE COLONIES MUST BE PROTECTED
BY THE CONSTITUTION-EXAMPLE OF SPAIN-PRECEDENT OF IRELAND-WALES
-CHESTER-DURHAM-EXCITEMENTS OF THE AMERICAN MIND TO BE CONSIDERED AND ALLOWED FOR-EFFECT OF RECONCILIATION.
I HOPE, sir, that notwithstanding the austerity of the chair, your
good nature will incline you to some degree of indulgence toward
human frailty. You will not think it unnatural that those who
have an object depending, which strongly engages their hopes and
fears, should be somewhat inclined to superstition. As I came into
the house full of anxiety about the event of my motion, I found, to
my infinite surprise, that the grand penal bill, by which we had
passed sentence on the trade and sustenance of America, is to be
returned to us from the other house. I do confess, I could not
help looking on this event as a fortunate omen. I look upon it as




ADDENDA.                        559
a sort of providential favor, by which we are put once more in possession of our deliberate capacity upon a business so very questionable in its nature, so very uncertain in its issue. By the return
of this bill, which seemed to have taken its flight for ever, we are
at this very instant nearly as free to choose a plan for our American
government, as we were on the first day of the session. If, sir,
we incline to the side of conciliation, we are not at all embarrassed
(unless we please to make ourselves so) by any incongruous mixture
of coercion and restraint. We are, therefore, called upon, as it were,
by a superior warning voice, again to attend to America-to attend to the whole of it together-and to review the subject with an
unusual degree of care and calmness.
To restore order and repose to an empire so great and so distracted as ours is, merely, in the attempt, an undertaking that would
ennoble the flights of the highest genius, and obtain pardon for the
efforts of the meanest understanding.  Struggling a good while
with these thoughts, by degrees I felt myself more firm. I derived
at length some confidence from what in other circumstaaces usually
produces timidity. I grew less anxious, even from the idea of my
own insignificance. For, judging of what you are by what you
ought to be, I persuaded myself that you would not reject a reasonable proposition, because it had nothing but its reason to recommend it. On the other hand, being totally destitute of all shadow
of influence, natural or adventitious, I was very sure that if my
proposition were futile or dangerous, if it were weakly conceived,
or improperly timed, there was nothing exterior to it of power or
awe, to dazzle, or delude you. You will see it just as it is; and you
will treat it just as it deserves.
The proposition is peace, not peace through the medium of war;
not peace to be hunted through the labyrinth of intricate and endless negotiations; not peace to arise out of universal discord, fomented upon principle, in all parts of the empire; not peace to depend
on the judicial determination of perplexing questions, or the precise marking of the shadowy boundaries of a complex government.
It is simply peace, sought in its natural course, and in its ordinary
haunts. It is peace sought in the spirit of peace; and laid in
principles purely pacific. I propose, by removing the ground of




560                       ADDENDA.
the difference, and by restoring the former unsuspecting confidence of
the colonies in the mother country, to give permanent satisfaction to
your people; and (far from a scheme of ruling by discord) to reconcile them to each other in the same act, and by the bond of the
very same interest, which reconciles them to British government.
My idea is nothing more.  Refined policy ever has been the
parent of confusion; and ever will be so as long as the world
endures. Plain good intention, which is as easily discovered at the
first view, as fraud is surely detected at the last, is, let me say, of
no mean force in the government of mankind. Genuine simplicity
of heart is a healing and cementing principle. My plan, therefore,
being formed upon the most simple grounds imaginable, may disappoint some people when they hear it. It has nothing to recommend it to the pruriency of curious ears. There is nothing at all
new and captivating in it.
I mean to give peace.  Peace implies reconciliation; and
where there has been a material dispute, reconciliation does, in a
manner, always imply concession on the one part or on the other.
In this state of things I make no difficulty in affirming that the
proposal ought to originate from  us.  Great and acknowledged
force is not impaired, either in effect or in opinion, by an unwillingness,to exert itself. The superior power may offer peace
with honor and with safety.  Such an offer, from such a power,
will be attributed to magnanimity. But the concessions of the weak
are concessions of fear. When such a one is disarmed he is wholly
at the mercy of his superior; and he loses forever that time and
those chances, which, as they happen to all men, are the strength
and resources of all inferior power.
The capital leading questions on which you must this day
decide, are these two: First, whether you ought to concede; and
second, what your concession ought to be.  0 a the first of these
questions we have gained (as I have just taken the liberty of
observing to you) some ground.  But I am sensible that a good deal
more is still to be done.  Indeed, sir, to enable us to determine
both on the one and the other of these great questions with a firm
aud precise judgment, I think it may be necessary to consider distinctly the true nature and the peculiar circumstances of the object




ADDENDA.                        561
which we have before us. Because after all our struggle, whether
we will or not, we must govern America, according to that nature,
and to those circumstances; and not according to our own imaginations; not according to abstract ideas of right; but by no means
according to mere general theories of government, the resort to
which appears to me, in our present situation, no better than arrant
trifling.
America, gentlemen say, is a noble object.  It is an object
well worth fighting for. Certainly it is, if fighting a people be the
best way of gaining them. Gentlemen in this respect will be led
to their choice of means by their complexions and their habits.
Those who understand the military art, will of course have some
predilection for it. Those who wield the thunder of the state, may
have more confidence in the efficacy of arms. But I confess,
possibly for want of this knowledge, my opinion is much more in
favor of prudent management, than of force; considering force not
as odious, but as a feeble instrument, for preserving a people so
numerous, so active, so growing, so spirited as this, in a profitable
and subordinate connection with us.
First, sir, permit me to observe that the use of force alone is but
temporary.  It may subdue for a moment; but it does not remove
the necessity of subduing again: and a nation is not governed
which is perpetually to be conquered.
My next objection is uncertainty. Terror is not always the
effect of force; and an armament is not a victory.  If you do
not succeed, you are without resource; for, conciliation failing,
force remains; but force failing, no hope of reconciliation is left.
Power and authority are sometimes bought by kindness; but they
can never be begged as alms, by an impoverished and defeated
violence.
A further objection to force is, that you impair the object by
your very endeavors to preserve it. The thing you fought for is
not the thing which you recover; but depreciated, sunk, wasted,
and consumed in the contest. Nothing less will content me than
whole AAmerica.  I do not choose to consume its strength along
with our own; because in all parts it is the British strength that
I consume.  I do not choose to be caught by a foreign enemy at
24*




562                       ADDENDA.
the end of this exhausting conflict; and still less in the midst of
it. I may escape; but I can make no insurance against such an
event. Let me add that I do not choose wholly to break the
American spirit, because it is the spirit that has made the country.
Lastly, we have no sort of experience in favor of force as an
instrument in the rule of our colonies. Their growth and their
utility has been owing to methods altogether different. Our ancient
indulgence has been said to be pursued to a fault.  It may be so.
But we know, if feeling is evidence, that our fault was more
tolerable than our attempt to mend it; and our sin far more salutary than our penitence.
These, sir, are my reasons for not entertaining that high opinion
of untried force, by which many gentlemen, for whose sentiments
in other particulars I have great respect, seem to be greatly captivated. But there is still behind a third consideration concerning
this object, which serves to determine my opinion on the sort of
policy which ought to be pursued in the management of America,
even more than its population and its commerce. I mean its temper
and character.
In this character of the Americans, a love of freedom is the
predominating feature which marks and distinguishes the whole:
and as an ardent is always a jealous affection, your colonies become
suspicious, restive, and untractable, whenever they see the least
attempt to wrest from  them  by force, or shuffle from  them  by
chicane, what they think the only advantage worth living for.
This fierce spirit of liberty is stronger in the English colonies
probably than in any other people of the earth; and this from a
great variety of powerful causes; which, to understand the true
temper of their minds, and the direction which this spirit takes, it
will not be amiss to lay open somewhat more largely....
I do not mean to commend either the spirit in this excess, or
the moral causes which produce it.  Perhaps a more smooth and
accommodating spirit of freedom in them would be more acceptable
to us. Perhaps ideas of liberty might be desired, more reconcilable
with an arbitrary and boundless authority.  Perhaps we might
wish the colonists to be persuaded that their liberty is more secure,
when held in trust for them by us (as their guardians during a




ADDENDA.                        563
perpetual minority), than with any part of it in their own hands.
But the question is not whether the spirit deserves praise or blame;
what, in the name of God shall we do with it? You have before
you the object; such as it is, with all its glories, with all its imperfections on its head. You see the magnitude; the importance;
the temper; the habits; the disorders. By all these considerations
we are strongly urged to determine something concerning it. We
are called upon to fix some rule and line for our future conduct,
which may give a little stability to our politics, and prevent
the return of such unhappy deliberations as the present. Every
such return will bring the matter before us in a still more untractable form.  For what astonishing and incredible things have we
not seen already? What monsters have not been generated from
this unnatural contention?  Whilst every principle of authority
and resistance has been pushed, npon both sides, so far as it would
go, there is nothing so solid and certain, either in reasoning or in
practice, that has not been shaken....  We thought, sir, that
the utmost which the discontented colonists could do, was to
disturb authority; we never dreamt they could of themselves
supply it; knowing, in general, what an operose business it is
to establish a government absolutely new.... Some provinces
have tried their experiment as we have tried ours; and theirs has
succeeded. They have formed a government sufficient for its purposes, without the bustle of a revolution.  Evident necessity and
tacit consent have done the business in an instant.  So well they
have done it that Lord Dunmore (the account is among the fragments on your table) tells you that the new institution is infinitely
better obeyed than the ancient government ever was in its fortunate
periods. Obedience is what makes government, and not the names
by which it is called; not the name of governor as formerly, or
committee as at present.
Pursuing the same plan of punishing by the denial of the exercise of government to still greater lengths, we wholly abrogated
the ancient government of Massachusetts. We were confident that
the first feeling if not the very prospect of anarchy, would instantly enforce a complete submission.  The experiment was tried.
A new, strange, unexpected face of things appeared. Anarchy is




564                       ADDENDA.
found tolerable. A vast province has now subsisted, and subsisted
in a considerable degree of health and vigor, for near a twelvemonth, without governor, without public council, without judges,
without executive magistrates. How long it will continue in this
state, or what may arise out of this unheard of situation, how can
the wisest of us conjecture? Our late experience has taught us
that many of those fundamental principles, formerly believed infallible, are either not of the importance they were imagined to be;
or that we have not at all adverted to some other far more important, and far more powerful principles, which entirely overrule
those we had considered as omnipotent.  I am much against any.
further experiments, which tend to put to the proof any more of
these allowed opinions, which contribute so much to the public
tranquillity.  In effect, we suffer as much at home, by this loosening of all ties, and this concussion of all established opinions, as we
do abroad. For in order to prove that the Americans have no
right to their liberties, we are every day endeavoring to subvert the
maxims which preserve the whole spirit of our own.  To prove
that the Americans ought not to be free, we are obliged to depreciate the value of freedom itself; and we never seem to gain a
paltry advantage over them in debate, without attacking some of
those principles, or deriding some of those feelings, for which our
ancestors have shed their blood.
But, sir, in wishing to put an end to pernicious experiments, I
do not mean to preclude the fullest inquiry. Far from it. Far
from  deciding on a sudden or partial view, I would patiently go
round and round the subject, and survey it minutely in every possible aspect. Sir, if I were capable of engaging you to equal attention, I would state, that as far as I am capable of discerning,
there are but three ways of proceeding relative to this stubborn
spirit, which prevails in your colonies and disturbs your government.  These are-To change that spirit, as inconvenient, by removing the causes.  To prosecute it as criminal.  Or, to comply
with it as necessary. I would not be guilty of an imperfect enumeration; I can think of but these three.  Another has indeed
been started, that of giving up the colonies; but it met so slight a




ADDENDA.                         565
reception, that I do not think myself obliged to dwell a great while
upon it.
The first of these plans, to change the spirit as inconvenient,
by removing the causes, I think is the most like a systematic proceeding.' It is radical in its principles; but it is attended with great
difficulties, some of them little short, as I conceive, of impossibilities.
You cannot station garrisons in every part of these deserts. If
you drive the people from one place, they will carry on their annual tillage, and remove with their flocks and herds to another.
Many of the people in the back settlements are already little attached to particular situations. Already they have topped the
Apalachian mountains. From thence they behold before them an
immense plain, one vast, rich, level meadow; a square of five hundred miles. Over this they would wander, without a possibility of
restraint; they would change their manners with the habits of
their life; would soon forget a government by which they were
disowned; would become hordes of English Tartars; and pouring
down upon your unfortified frontiers a fierce and irresistible cavalry, become masters of your governors, and your councillors, your
collectors and comptrollers, and of all the slaves that adhered to
them.
To impoverish the colonies in general, and in particular to arrest the noble course of their marine enterprises, would be a more
easy task, I freely confess it.  We have shown a disposition to a
system of this kind; a disposition even to continue the restraint
after the offence; looking on ourselves as rivals to our colonies, and
persuaded that of course we must gain all that they shall lose.
Much mischief we may certainly do. The power inadequate to
all other things is often more than sufficient for this. I do not look
on the direct and immediate power of the colonies to resist our
violence, as very formidable. In this, however, I may be mistaken. But when I consider that we have colonies for no other purpose but to be serviceable to us, it seems to my poor understanding a little preposterous to make them unserviceable in order to
keep them obedient. It is, in truth, nothing more than the old and,
as I thought, exploded problem of tyranny, which proposes to beg



666                       ADDENDA.
gar its subjects into submission. But remember, when you have
completed your system of impoverishment, that nature still proceeds in her ordinary course; that discontent will increase with
misery; and that there are critical moments in the fortunes of all
states, when they who are too weak to contribute to your prosperity may be strong enough to complete your ruin. Spoliatis arma
supersunt.
The temper and character which prevail in our colonies are, I
am afraid, unalterable by any human art. We cannot, I fear, falsify the pedigree of this fierce people, and persuade them that
they are not sprung from a nation in whose veins the blood of
freedom circulates. The language in which they would hear you
tell them this tale would detect the imposition; your speech would
betray you. An Englishman is the unfittest person on earth to
argue another Englishman into slavery.
I think it is nearly as little in our power to change their republican religion as their free descent; or to substitute the Roman
Catholic as a penalty, or the Church of England as an improvement. The mode of inquisition and dragooning is going out of
fashion in the Old World; and I should not confide much to their
efficacy in the New. The education of the Americans is also on
the sanle unalterable bottom with their religion. You cannot persuade them to burn their books of curious science, to banish their
lawyers from the courts of law, or to quench the lights of their
assemblies by refusing to choose those persons who are best read
in their privileges. It would be no less impracticable to think of
wholly annihilating the popular assemblies in which these lawyers
sit. The army by which we must govern in their place would be
far more chargeable to us; not quite so effectual, and perhaps in
the end full as difficult to be kept in obedience.
With regard to the high aristocratic spirit of Virginia and the
Southern colonies, it has been proposed, I know, to reduce it by
declaring a general enfranchisement of their slaves. This project
has had its advocates and panegyrists; yet I never could argue
myself into any opinion of it. Slaves are often much attached to
their masters. A general wild offer of liberty would not always
be accepted.  History furnishes few instances of it.  It is some



ADDENDA0                         567
times as hard to persuade slaves to be free as it is to compel freemen to be slaves; and in this auspicious scheme we should have
both these pleasing tasks on our hands at once.  But when we talk
of enfranchisement, do we not perceive that the American master
may enfranchise too, and arm servile hands in defence of freedom?
A measure to which other people have had recourse more than
once, and not without success, in a desperate situation of their
affairs.
Slaves as these unfortunate black people are, and dull as all
men are from slavery, must they not a little suspect the offer of
freedom from that very nation which has sold them to their present masters?
If then, sir, it seems almost desperate to think of any alterative course, for changing the moral causes (and not quite easy to
remove the natural) which produce prejudices irreconcilable to the
late exercise of our authority; but that the spirit infallibly will
continue, and continuing will produce such effects as now embarrass
us; the second mode under consideration is, to prosecute that spirit
in its overt acts, as criminal.
At this proposition I must pause a moment. The thing seems
a great deal too big for my ideas of jurisprudence. It should seem
to my way of conceiving such matters, that there is a very wide
difference in reason and policy, between the mode of proceeding on
the irregular conduct of scattered individuals, or even of bands of
men, who disturb order within the state, and the civil dissensions
which may, from time to time, on great questions, agitate the several communities which compose a great empire. It looks to me to
be narrow and pedantic to apply the ordinary ideas of criminal
justice to this great public contest.  I do not know the method of
drawing up an indictment against a whole people. I cannot insult
and ridicule the feelings of millions of my fellow creatures, as Sir
Edward Coke insulted one excellent individual (Sir Walter Raleigh) at the bar. I am not ripe to pass sentence on the gravest
public bodies, intrusted with magistracies of great authority and
dignity, and charged with the safety of their fellow citizens, upon
the same title that I am. I really think, that for wise men this is




568                       ADDENDA.
not judicious; for sober men, not decent; for minds tinctured with
humanity, not mild and merciful.
Perhaps, sir, I am mistaken in my idea of an empire, as distinguished from a single state or kingdom.  But my idea of it is
this: that an empire is the aggregate of many states, under one
common head, whether this head be a monarch or a presiding
republic. It does, in such constitutions, frequently happen (and
nothing but the dismal, cold, dead uniformity of servitude can prevent its happening) that the subordinate parts have many local
privileges and immunities. Between these privileges and the supreme common authority the line may be extremely nice. Of
course disputes, often, too, very bitter disputes, and much ill blood,
will arise. But though every privilege is an exemption (in the
case) from the ordinary exercise of the supreme authority, it is no
denial of it. The claim of a privilege seems rather ex vi termini, to
imply a superior power. For to talk of the privileges of a state or
of a person, who has no superior, is hardly any better than speaking nonsense. Now, in such unfortunate quarrels, among the component parts of a great political union of communities, I can scarcely
conceive anything more completely imprudent, than for the head of
the empire to insist, that, if any privilege is pleaded against his
will, or his acts, that his whole authority is denied; instantly to
proclaim rebellion, to beat to arms, and to put the offending provinces under the ban. Will not this, sir, very soon teach the provinces to make no distinctions on their part? Will it not teach
them that the government, against which a claim of liberty is tantamount to high treason, is a government to which submission is
equivalent to slavery? It may not be always convenient to impress
independent communities with such an idea.
We are, indeed, in all disputes with the colonies, by the necessity of things, the judge.  It is true, sir.  But I confess that the
character of judge in my own cause, is a thing that frightens me.
Instead of filling me with pride, I am exceedingly humbled at it.
I cannot proceed with a stern, assured, judicial confidence, until I
find myself in something more like a judicial character. I must
have these hesitations as long as I am compelled to recollect, that,
in my little reading upon such contests as these, the sense of man



ADDENDA.                        569
kind has, at least, as often decided against the superior as the subordinate power. Sir, let me add, too, that the opinion of my having
some abstract right in my favor would not put me much at my ease
in passing sentence; unless I could be sure that there were no
rights which, in their exercise under certain circumstances, were
not the most odious of all wrongs, and the most vexatious of all
injustice.  Sir, these considerations have great weight with me,
when I find things so circumstanced, that I see the same party, at
once a civil litigant against me in point of right, and a culprit before me; while I sit as criminal judge, on acts of his, whose moral
quality is to be decided upon the merits of that very litigation.
Men are every now and then put, by the complexity of human affairs, into strange situations; but justice is the same, let the judge
be in what situation he will.
There is, sir, also a circumstance which convinces me, that this
mode of criminal proceeding is not (at least in the present stage of
our contest) altogether expedient; which is nothing less than the
conduct of those very persons who have seemed to adopt that mode,
by lately declaring a rebellion in Massachusetts Bay, as they had
formerly addressed to have traitors brought hither under an act of
Henry the Eighth, for trial.  For, though rebellion is declared, it is
not proceeded against as such; nor have any steps been taken
towards the apprehension and conviction of any individual offender,
either on our late or our former address; but modes of public coercion have been adopted, and such as have much more resemblance
to a sort of qualified hostility towards an independent power than
the punishment of rebellious subjects. All this seems rather inconsistent; but it shows how difficult it is to apply these juridical
ideas to our present case.
In this situation let us seriously and coolly ponder. What is it
we have got by all our menaces, which have been many and ferocious? What advantage have we derived from the penal laws we
have passed, and which, for the time, have been severe and numerous?  What advances have we made towards our object, by the
sending of a force, which, by land and sea, is of no contemptible
strength?  Has the disorder abated?  Nothing less. When I see
things in this situation, after such confident hopes, bold promises,




570                       ADDENDA.
and active exertions, I cannot, for my life, avoid a suspicion, that
the plan itself is not correctly right.
If, then, the removal of the causes of this American liberty be,
for the greater part, or rather entirely, impracticable; if the ideas
of criminal process be inapplicable, or if applicable, are in the
highest degree inexpedient, what way yet remains? No way is
open, but the third and last-to comply with the American spirit
as necessary; or, if you please, to submit to it as a necessary evil.
If we adopt this mode, if we mean to conciliate and concede,
let us see of what nature the concession ought to be; to ascertain
the nature of our concession, we must look at their complaint. The
colonies complain that they have not the characteristic mark and
seal of British freedom. They complain that they are taxed in a
Parliament in which they are not represented. If you mean to
satisfy them all, you must satisfy them in regard to this complaint.
If you mean to please any people, you must give them the boon
which they ask; not what you may think better for them, but of a
kind totally different. Such an act may be a wise regulation, but it
is no concession; whereas our present theme is the mode of giving
satisfaction.
The question with me is, not whether you have a right to render
your people miserable; but whether it is not your interest to make
them happy.  It is not, what a lawyer tells me, I may do; but
what humanity, reason, and justice, tell me I ought to do. Is a
politic act the worse for being a generous one? Is no concession
proper but that which is made from your want of right to keep what
you grant? Or does it lessen the grace or dignity of relaxing in
the exercise of an odious claim, because you have your evidence
room full of titles, and your magazines stuffed with arms to enforce
them?  What signify all those titles, and all those arms?  Of
what avail are they,. when the reason of the thing tells me that the
assertion of my title is the loss of my suit; and that I could do
nothing but wound myself by the use of my own weapons?
Such is steadfastly my opinion of the absolute necessity of keeping up the concord of this empire by a unity of spirit, though by a
diversity of operations, that if I were sure the colonists had, at their
leaving this country, scaled a regular compact of servitude; that




ADDENDA.                         571
they had solemnly abjured all the rights of citizens; that they had
made a vow to renounce all ideas of liberty for them and their
posterity, to all generations, yet I should hold myself obliged to
conform to the temper I found universally prevalent in my own
day, and to govern two millions of men, impatient of servitude, on
the principles of freedom. I am not determining a point of law;
I am restoring tranquillity; and the general character and situation
of a people must determine what sort of government is fitted for
them.  That point nothing else can or ought to determine.
My idea, therefore, without considering whether we yield as
matter of right, or grant as matter of favor, is, to admit the people
of our colonies into an interest in the constitution; and by recording that
admission in the journals of Parliament, to give them as strong
an assurance as the nature of the thing will admit, that we mean
forever to adhere to that solemn declaration of systematic indulgence.
In forming a plan for this purpose, I endeavored to put myself
in that frame of mind, which was the most natural, and the most
reasonable; and which was certainly the most probable means of
securing me from all error. I set out with a perfect distrust of my
own abilities; a total renunciation of every speculation of my own;
and with a profound reverence for the wisdom of our ancestors, who
have left us the inheritance of so happy a constitution, and so
flourishing an empire, and what is a thousand times more valuable,
the treasury of the maxims and principles which formed the one, and
obtained the other.
During the reigns of the kings of Spain of the Austrian family,
whenever they were at a loss in the Spanish councils, it was common for their statesmen to say, that they ought to consult the genius
of Philip the Second.  The genius of Philip the Second might
mislead them, and the issue of their affairs showed that they had
not chosen the most perfect standard.  But sir, I am sure that I
shall not be misled, when, in a case of constitutional difficulty, I
consult the genius of the English Constitution.  Consulting at that
oracle (it was with all due humility and piety) I found four capital
examples in a similar case before me: those of Ireland, Wales,
Chester, and Durham.




572                       ADDENDA.
Ireland, before the English conquest, though never governed
by a despotic power, had no parliament.  How far the English
Parliament itself was at that time modelled according to the present
form, is disputed among antiquarians. But we have all the reason
in the world to be assured, that a form of parliament, such as Eng.
land then enjoyed, she instant!y communicated to Ireland; and we
are equally sure that almost every successive improvement in constitutional liberty, as fast as it was made here, was transmitted
thither. The feudal baronage and the feudal knighthood, the roots
of our primitive constitution, were equally transplanted into that
soil; and grew and flourished there. Magna Charta, if it did not
give us originally the House of Commons, gave us at least a House
of Commons of weight and consequence.  But your ancestors did
not churlishly sit down alone at the feet of Magna Charta. Ireland
was made immediately a partaker.  This benefit of English laws
and liberties, I confess, was not extended to all Ireland. Mark the
consequence. English authority and English liberty had exactly
the same boundaries. Your standard could never be advanced an
inch before your privileges. Sir John Davis shows beyond a doubt,
that the refusal of a general communication of these rights, was the
true cause why Ireland was five hundred years in subduing; and
after the vain projects of a military government attempted in the
reign of Queen Elizabeth, it was soon discovered that nothing could
make that country English, in civility and allegiance, but your laws
and your forms of legislature. It was not English arms, but the
English Constitution, that conquered Ireland.  From  that time,
Ireland has ever had a general parliament, as she had before, a partial parliament. You changed the people, you altered the religion; but you never touched the form of the vital substance of free
government in that kingdom. You deposed kings, you restored
them; you altered the succession to theirs, as well as to your own
crown; but you never altered their constitution; the principle of
which was respected by usurpation; restored with the restoration
of monarchy, and established, I trust, forever by the glorious Revolution. This has made Ireland the great and flourishing kingdom
that it is; and from a disgrace and a burden, intolerable to this




ADDENDA.                        5'73
nation, has rendered her a principal part of our strength and ornament.
My next example is Wales. This country was said to be reduced by Henry the Third. It was said more truly to be so by
Edward the First. But though then conquered, it was not looked
upon as any part of the realm of England. Its old constitution,
whatever that might have been, was destroyed, and no good one
was substituted in its place. The care of that tract was put into
the hands of lord marchers-a form of government of a very singular kind; a strange, heterogeneous monster, something between
hostility and government; perhaps it has a sort of resemblance,
according to the modes of those times, to that of commander-inchief, at present, to whom all civil power is granted as secondaryThe manners of the Welsh nation followed the genius of the govern.
ment; the people were ferocious, restive, savage, and uncultivated;
sometimes composed; never pacified. Wales within itself, was in
perpetual disorder; and it kept the frontier of England in perpetual
alarm.  Benefits from it to the state, there were none.  Wales was
only known to England by incursion and invasion.
Sir, during that state of things, Parliament was not idle. They
attempted to subdue the fierce spirit of the Welsh by all sorts of
rigorous laws. They prohibited by, statute the sending all sorts
of arms into Wales, as you prohibit by proclamation (with something more of doubt on the legality) the sending arms to America.
They disarmed the Welsh by statute, as you attempted (but with
still more question on the legality) to disarm New England by an
instruction.  They made an act to drag offenders from Wales into
England for trial, as you have done (but with more hardships) with
regard to America. By another act, where one of the parties was
an Englishman, they ordained that his trial should be always by
English. They made acts to restrain trade, as you do; and they prevented the Welsh from the use of fairs and markets, as you do the
Americans from fisheries and foreign ports. In short, when the
statute book was not quite so much swelled as it is now, you find
no less than fifteen acts of penal regulation on the subject of
Wales.
Here we rub our hands —a fine body of precedents for the au



5'74                      ADDENDA.
thority of Parliament and the use of it! —I admit it fully;
and pray add likewise to these precedents, that all the while Wales
rid this kingdom like an incubus; that it was an unprofitable and
oppressive burden; and that an Englishman in that country could
not go six yards from the high road without being murdered.
The march of the human mind is slow. Sir, it was not until
after two hundred years discovered, that by an eternal law, Providence had decreed vexation to violence, and poverty to rapine.
Your ancestors did however at length open their eyes to the ill
husbandry of injustice. They found that the tyranny of a free
people, could of all tyrannies the least be endured; and that laws
made against a whole nation were not the most effectual methods
for securing its obedience. Accordingly, in the 27th year of Henry
VIII., the course was entirely altered. With a preamble stating
the entire and perfect rights of the crown of England, it gave to
the Welsh all the rights and privileges of English subjects. A
political order was established.; the military power gave way to the
civil; the marches were turned into counties.  But that a nation
should have a right to English liberties, and yet no share at all in
the fundamental security of these liberties, the grant of their own
property, seemed a thing so incongruous, that eight years after, that
is, in the thirty-fifth of that reign, a complete and not ill-proportioned representation by counties and boroughs was bestowed upon
Wales, by act of Parliament.  From  that moment, as by a charm,
the tumults subsided; obedience was restored; peace, order, and
civilization followed in the train of liberty. When the day star of
the English Constitution had arisen in their hearts, all was harmony
within and without.
Simul alba nautis,
Stella refulsit;
Defluit saxis agitatus humor;
Concidunt venti, fugiuntque nubes,
Et minax (quod sic voluere) ponto
Unda recumbit.
The very same year the county palatine of Chester received
the same relief from its oppressions, and the same remedy to its
disorder. Before this time Chester was little less distempered than




ADDENDA.                        575
Wales. The inhabitants, without rights themselves, were the fittest
to destroy the rights of others; and from thence Richard II. drew
the standing army of archers with which for a time he oppressed
England.
Here is my third example. It was attended with the success
of the two former. Chester, civilized as well as Wales, has demonstrated that freedom and not servitude is the cure of anarchy; as
religion and not atheism, is the true remedy for superstition.
I do not know that the colonies have, in any general way, or in
any cool hour, gone much beyond the demand of immunity in relation to taxes.  It is not fair to judge of the temper or dispositions
of any man, or any set of men, when they are composed and at
rest, from their conduct, or their expressions, in a state of disturbance and irritation. It is, besides, a very great mistake to imagine
that mankind follow up practically any speculative principle, either
of government or of freedom, as far as it will go in argument and
logical illation. We Englishmen stop very short of the principles
upon which we support any given part of our constitution; or even
the whole of it together. I could easily, if I had not altogether
tired you, give you very striking and convincing instances of it.
This is nothing but what is natural and proper. All government,
indeed every human benefit and enjoyment, every virtue, and every
prudent act, is founded on compromise and barter. We balance
inconveniences; we give and take; we remit some rights that we
may enjoy others; and we choose rather to be happy citizens than
subtle disputants. As we must give away some natural liberty, to
enjoy civil advantages; so we must sacrifice some civil liberties, for
the advantages to be derived from the communion and fellowship
of a great empire. But in all fair dealings, the thing bought must
bear some proportion to the purchase paid. None will barter away
the immediate jewel of his soul. Though a great house is apt to
make slaves haughty, yet it is purchasing a part of the artificial
importance of a great empire too dear, to pay for it all essential
rights, and all the intrinsic dignity of human nature. None of us
who would not risk his life, rather than fall under a government
purely arbitrary. But, although there are some amongst us who
think our constitution wants many improvements to make it a




576                       ADDENDA.
complete system of liberty, perhaps none who are of that opinion
would think it right to aim at such improvement, by disturbing his
country, and risking everything that is dear to him. In every
arduous enterprise, we consider what we are to lose, as well as what
we are to gain; and the more and better stake of liberty every
people possess, the less they will hazard tn a vain attempt to make
it more.  These are the cords of man. Man acts from  adequate
motives relative to his interest, and not on metaphysical speculations. Aristotle, the great master of reasoning, cautions us, and
with great weight and propriety, against this species of delusive
geometrical accuracy in moral arguments, as the most fallacious of
all sophistry.
The Americans will have no interest contrary. to the grandeur
and glory of England, when they are not oppressed by the weight
of it; and they will rather be inclined to respect the acts of a
superintending legislature, when they see them the acts of that
power, which is itself the security, not the rival of their secondary
importance.  In this assurance my mind most perfectly acquiesces;
and I confess I feel not the least alarm from the discontents which
are to arise from putting people at their ease; nor do I apprehend
the destruction of this empire, from giving, by an act of free grace
and indulgence, to two millions of my fellow citizens, some share of
those rights upon which I have always been taught to value
myself.