Iltlll 

 
 UNIVERSITY OF CALIFORNIA 
 AT LOS ANGELES
 
 THE AMERICAN CONSTITUTION
 
 THE 
 AMERICAN CONSTITUTION 
 
 THE NATIONAL POWERS 
 THE RIGHTS OF THE STATES 
 THE LIBERTIES OF THE PEOPLE 
 
 ILotoell Institute Hecturee 
 
 DELIVERED AT BOSTON, OCTOBER - NOVEMBER, 1907 
 
 BY 
 
 FREDERIC JESUP STIMSON 
 
 Professor of Comparative Legislation, Har\'ard University; Late Ad\'isorj' 
 Counsel to the U. S. Industrial Commission: Author of "American Con- 
 stitutional Law," "American Statute Law," "Handbook to 
 the Labor Law of the United States," etc., etc. 
 
 NEW YORK 
 
 CHARLES SCRIBNER'S SONS 
 
 1908
 
 Copyright 1908 bv 
 CHARLES SCRIBNER'S SONS
 
 c3 PREFACE 
 
 In these lectures I have used, for veri- 
 fication of facts, chronology, etc., the monu- 
 mental work of Hannis Taylor, LL.D,, 
 <n "The Origin and Growth of the English 
 Constitution," Boston, Houghton, Mifflin & 
 ^\«l Co., 1889, and the English classic, Taswell- 
 Langmead, "English Constitutional His- 
 tory," sixth edition, London, 1905. For 
 other facts and statements, their ampli- 
 fication and explanation, the reader is 
 >^ referred to my own work "American Con- 
 > stitutional Law ; the Federal and State 
 ^ Constitutions," Boston Book Company, 
 ^ 1908. 
 
 The frontispiece is taken from the last- 
 named book, by courtesy of the publishers. 
 
 208i^J3
 
 CONTENTS 
 
 CHAPTER MCSE 
 
 I. The Meaning of the Constitution . i 
 
 II. Constitutional Rights Peculiar to 
 
 English and American Freemen . 32 
 
 III. English Liberty and the Freedom of 
 
 Labor 63 
 
 IV. Development of These Rights; Their 
 
 Infringement by Kings and Their 
 Reestablishment by the People . 92 
 
 V. The Expression of Those Liberties in 
 
 Our Federal Constitution . . . 131 
 
 VI. Division of Powers Between Legis- 
 lative, Executive, and Judicial; 
 AND Between the Federal Gov- 
 ernment and the States .... 167
 
 CONTENTS 
 
 CHAPTER PACE 
 
 VII. Changes in the Constitution now 
 
 Proposed 204 
 
 VIIL Interstate Commerce, the Control of 
 Trusts, and the Regulation of Cor- 
 porations 227
 
 THE AMERICAN CONSTITUTION
 
 THE MEANING OF THE CONSTITUTION 
 
 THERE seems to be an impression 
 abroad that our Constitution is a 
 mass of dry bones; or at least that it is a 
 technical document, in part faulty, and for 
 the most part obsolete — like the rules of a 
 game which has since so changed its nature 
 that the old rules no longer apply. The 
 Constitution has been likened to the frigate 
 Constitution; a famous vessel in her day, 
 but obsolete in type, no longer fit to cope 
 with modern conditions. This metaphor is 
 utterly misleading. I want to show you 
 that it is not a mass of dry rules, but the 
 very substance of our freedom; not obso- 
 lete, but in every part alive; more needful 
 now than ever, and as fitted to our needs. 
 Some of the constitutional rights which 
 were thought of great importance under the 
 Stuarts, or even one hundred years ago, 
 may possibly seem less familiar and less
 
 THE AMERICAN CONSTITUTION 
 
 necessary to us now. Even if it were true, 
 that would not make of the Constitution 
 an ** antiquarian curiosity/' But when we 
 come to discuss them, we should hesitate 
 from hastily assuming that any one of them 
 has grown so obsolete as to be unnecessary 
 to preserve. A few months ago, the provi- 
 sion against Bills of Attainder— that is, 
 condemnation for crime or forfeiture of 
 civil rights without due process of law — 
 would have seemed hardly necessary in 
 America. Yet since then, in his praise- 
 worthy zeal to punish a military disorder, 
 so far quite within his constitutional right 
 as Commander-in-Chief, we have seen our 
 President dictate what was little else than 
 an Executive Bill of Attainder — a thing 
 which was hardly, if at all, attempted by 
 the Stuart kings. Another instance— after 
 the Norman kings were deprived of the 
 power of making laws, the Stuarts, James 
 I and Charles I, assumed the power to 
 suspend them. This led to the protest of 
 Chief Justice Coke and the Commons, and 
 ultimately to the Civil War; so that finally 
 after the Revolution it was put into the 
 Bill of Rights that the king should have no
 
 THE MEANING OF THE CONSTITUTION 
 
 power to suspend the operation of any law. 
 This also might seem obsolete; but if it 
 were true — which it is probably not — that 
 our present Executive recently promised to 
 suspend or withhold the operation of the 
 anti-trust law in case a certain great cor- 
 poration were to take over the property of 
 another, this would be an exact instance in 
 point. No, we dare not say any part of this 
 great document is obsolete, and it is all full 
 of human meaning, of present application. 
 It is to explain the true meaning of the 
 Constitution, its human meaning, the safe- 
 guards that it gives to every one of us, 
 the live issues that it still embodies, that 
 I have been asked to give this course of 
 lectures. 
 
 The study of Anglo-American constitu- 
 tional law is that of the liberties of the 
 people. It is neither a body of technical- 
 ities, as the demagogue is prone to con- 
 sider, nor an instrument first new created 
 in the year 1787, and now only an incon- 
 venient impediment to the national destiny. 
 Our own Constitution embodies and im- 
 proves upon the English Constitution, and 
 the English Constitution registers the total- 
 
 3
 
 THE AMERICAN CONSTITUTION 
 
 ity — the aggregate — of those great principles 
 which in eight hundred and forty years of 
 struggle the Saxon peoples have won back 
 again from Norman kings, from Roman con- 
 ceptions of the sovereign state. Each rising 
 wave of freedom left its record in some 
 historic document — then perhaps the times 
 cause it to recede again — until the next 
 flood leaves a higher record still. And the 
 Federal Constitution, the whole of it, is 
 nothing but a code of the people's liberties, 
 political and civil; a code of many cen- 
 turies' growth, which they willed to adopt in 
 1787, and willed should never be abrogated 
 without the people's will. 
 
 I said eight hundred and forty years — 
 reckoning from the Norman Conquest; but 
 the main constitutional principles are much 
 older and go back as far as goes the history 
 of the English people. William might con- 
 quer England, but he could not alter their 
 free laws; from every wave of Norman 
 tyranny they emerge, clearer than ever. 
 Each king in turn must learn to recognize 
 their strength; until, in the English Revo- 
 lution, the Crown finally gave over all at- 
 tempt to hold itself above them. 
 
 4
 
 THE MEANING OF THE CONSTITUTION 
 
 And we have added in America two or 
 three new principles which the world is 
 agreed to consider the most remarkable of 
 any of them. First of all, the great discov- 
 ery that the people might be protected from 
 any danger to their liberties, from the legisla- 
 ture or the courts as well as from the Crown, 
 even from that Federal Government they 
 were going to create; second, the great prin- 
 ciple of the separation of the powers of 
 government, which first appears in the Vir- 
 ginia Bill of Rights of 1776, just one month 
 before the Declaration of Independence, and 
 also written by Thonias Jefferson; and again 
 in the Massachusetts Constitution of 1780, 
 in the famous words of the closing para- 
 graph of our great Bill of Rights: '*In the 
 government of this commonwealth, the legis- 
 lative department shall never exercise the 
 executive and judicial powers, or either of 
 them: the executive shall never exercise the 
 legislative and judicial powers, or either of 
 them: the judicial shall never exercise the 
 legislative and executive powers, or either 
 of them: to the end it may be a government 
 of laws and not of men." These last ten 
 words, you remember, Daniel Webster said 
 
 5
 
 THE AMERICAN CONSTITUTION 
 
 were the greatest words contained in any 
 written constitutional document. And this 
 separation was without any precedent in 
 actual history. Montesquieu had men- 
 tioned it, basing his discovery on the history 
 of England — where a free people had re- 
 peatedly nearly lost its freedom by having 
 the executive, that is, the King, assume 
 legislative powers, that is, making the laws; 
 or assume judicial powers, by interfering or 
 controlling the courts which interpreted 
 3 them. And a third great invention of ours, 
 more rarely noted though clearly novel in 
 the history of the world, was that wonderful 
 scheme whereby local self-government, the 
 control by the people of their own affairs, 
 which was, from prehistoric times, a cardinal 
 Anglo-Saxon right, was recognized and con- 
 joined with the powerful national govern- 
 ment, working directly upon the people, and 
 not upon the States, as had been the case 
 in all other federations of history and was 
 the case even in our own under the Conti- 
 nental Congress. So that we, the people, 
 manage our own domestic affairs, sue and 
 are sued in our own courts, are tried under 
 our local laws, while yet we have clothed
 
 THE MEANING OF THE CONSTITUTION 
 
 the national government at Washington 
 with power adequate to defend the nation, 
 maintain its dignity abroad, and duly regu- 
 late affairs of national concern. And the <g_ 
 last wonderful invention — we might almost 
 call this also an accident — was the making 
 the Supreme Court of the United States — 
 not the King, the Executive, nor even Con- 
 gress — the high guardian of this Constitu- 
 tion itself; so that no law could be made 
 and no act be done in possible violation 
 of any of a man's constitutional rights that 
 the man himself, be he the humblest citi- 
 zen, could not go into a court and have the 
 law annulled. 
 
 *' Annul" is the usual phrase, but it is 
 an incorrect one; and this brings us to the 
 first great distinction I want to leave in 
 your minds, namely, what is our Constitu- 
 tion, as opposed to an ordinary law or act of 
 Congress. 
 
 The Constitution is the permanent will =f' 
 of the people; a law is but the temporary 
 act of their representatives, who have only 
 such power as the people choose to give 
 them. When the people of a State, or the 
 United States, come together and make a 
 
 7
 
 THE AMERICAN CONSTITUTION 
 
 constitution, they are doing the highest po- 
 htical act; and they themselves are the high- 
 est poUtical power known to free Anglo- 
 Saxon peoples. The people of Oklahoma, 
 when they came together the other day to 
 frame their Constitution, were the supreme 
 political assembly known to a free world. 
 They are the very source of all political 
 power; nothing can withstand their will, 
 and when expressed, it is permanent until 
 they themselves in the same way choose to 
 change it. Legislatures are but a small 
 representative committee; for convenience 
 delegated with a few, and only a few, of the 
 boundless powers of a free people. Legis- 
 latures arose, as you know, in quite recent 
 times. Almost down to the Conquest, the 
 whole body of the Anglo-Saxon people made 
 their law: the Witenagemot, or, as the Nor- 
 mans call it, the Great Council of the Realm. 
 In theory every freeman could go, and was 
 supposed to go, to these Witenagemots. 
 Indeed, it is on record that at one of them 
 held on Salisbury Plain, about a hundred 
 years before the Conquest, there were sixty 
 thousand voters present. This is ''direct 
 legislation by the people" of which we hear 
 
 8
 
 THE MEANING OF THE CONSTITUTION 
 
 so much to-day and which some of our 
 western States are beginning to introduce 
 once more. But, for obvious reasons of 
 convenience, in the course of two or three 
 centuries they got into the way of choosing 
 a smaller number of men to represent them. 
 This is what we call representative govern- 
 ment; and this was called the great invention 
 which the English people had given to the 
 world's science of government. It was first 
 used in the very assembly which drew up 
 Magna Charta. It has been copied — like 
 trial by jury — everywhere since; in every 
 European country, now even in Russia. 
 
 Now, Parliament, in England, is sup- 
 posed to have all the powers of the people; 
 but we more jealously guarded the people's 
 rights, and all our State constitutions, as 
 well as the National Constitution, carefully 
 say that Congress, or the State legislatures, 
 do not have all the powers of the people; but 
 only represent them in such matters as they 
 have expressly delegated to them in our writ- 
 ten constitutions; and that all other powers 
 are reserved to the people, or to the States. 
 
 Now, then, I hope you will see why it is 
 incorrect to talk about a court "nullifying" 
 
 9
 
 THE AMERICAN CONSTITUTION 
 
 a law. No one of our courts, not the Su- 
 preme Court of the United States, ever 
 nullifies or can annul a law; but when there 
 is a State statute or an Act of Congress on 
 the one hand, and the permanent will of the 
 people expressed in the Constitution on the 
 other hand, and the two conflict — the courts 
 have to choose which law to apply, and they 
 apply the higher law, that is, the permanent 
 will of the people as expressed in the Consti- 
 tution — not the attempted act of their rep- 
 resentatives beyond their own authority. 
 The other law is really no law at all, and 
 never was law; for under the American idea, 
 that cannot be law, whether made by Con- 
 gress, government, or President, by board 
 or by commission, which in any way clashes 
 with the permanent written will of the peo- 
 ple. No other country in the world has this 
 principle, whereby not even the government 
 can make a law counter to the Constitution; 
 nor any officer can do an act not authorized 
 by it; and in either case the Supreme Court 
 is made the umpire to judge. This system 
 is the envy and the marvel of the rest of 
 the civilized world. 
 
 The next great distinction between ours 
 
 10
 
 THE MEANING OF THE CONSTITUTION 
 
 and the English Constitution is this: the 
 English Constitution was made to protect 
 the people against the King, against the 
 Executive alone; not against bad laws, 
 against Parliament. It was a bulwark 
 against Charles Stuart, Henry VIII, and 
 George III; but it was no bulwark against 
 the Rump Parliament of the later Common- 
 wealth, or against the corrupt Parliaments 
 of the Tudor kings. Therefore, in England, 
 when the kings sought to re-enslave the peo- 
 ple, they were apt to make the effort through 
 a subservient Parliament, even more than 
 by a subservient judiciary; for the English 
 Constitution is no bulwark to protect the 
 people from parliaments or courts. But 
 we had the wonderful idea of protecting 
 ourselves against any usurpation of govern- 
 ment, and the usurpation of any govern- 
 ment — even of our own — thus retaining the 
 liberties of the people forever in their own 
 hands, exercised in their own local courts, 
 their own town meetings and their own 
 legislatures, guarded by all the courts of 
 the States and of the United States; so that 
 even their own government, set up only so 
 far away from them as Washington, might 
 
 II
 
 THE AMERICAN CONSTITUTION 
 
 not too much busy itself with their domestic 
 concerns. For the one thing the Enghsh 
 people learned was that a distant govern- 
 ment, even benign — Henry VI in France, 
 for instance, or even too much power cen- 
 tralized in London — was dangerous to the 
 well-being if not the liberties of the people. 
 The twelfth and thirteenth centuries are a 
 continual struggle to keep power where it 
 belonged — in the people's councils, not in 
 the will of the King; in the county courts, 
 not with the royal Chancellor. " The great 
 original principle of the English judicial 
 system was that of trial in local courts prop- 
 erly constituted — trial per pais, in the pres- 
 ence of the county, as opposed to a distant 
 and unknown tribunal." (T. L.,28.) And, 
 therefore, in our Federal Constitution we 
 protected ourselves against usurpations even 
 of our own government, or of either branch 
 of it. Congress or President, on those home 
 liberties which a thousand years' experience 
 have shown to be, as it were, the irreducible 
 minimum necessary to the Anglo-American 
 people for freedom as they understand it. 
 Now this was no accident; the Anglo-Saxon 
 system is not to make constitutions ready- 
 
 12
 
 THE MEANING OF THE CONSTITUTION 
 
 made, but to let them grow out of events and 
 the actions of free men; and though it might 
 seem marvellous that our Democracy, a 
 Democracy which for the first time in history 
 grasped all the reins of government, legis- 
 lative as well as executive and judicial, grow- 
 ing conscious of its power actually to make 
 the laws, should, as a first step, have taken 
 pains to put this curb upon themselves and 
 invented written constitutions. State and 
 National, — there were two reasons for it; and 
 these reasons are opposite to one another. 
 The genius of the Anglo-Saxon people is 
 to rule themselves. To a certain extent it 
 had been done, at least so far as the King's 
 powers were concerned, in England for 
 many centuries: *'The laws of the English, 
 the most ancient of modern law, extend in 
 an unbroken series from Ethelbert, the first 
 Christian King of Kent; the earliest written 
 collections are simply digests of local un- 
 written customs which had been handed 
 down by oral tradition and were now put 
 in writing to meet the needs of a more de- 
 veloped and centralized State organization" 
 (T. L., 1,^), and we had not — the founders 
 had not — any doubt of our ability to go on 
 
 13
 
 THE AMERICAN CONSTITUTION 
 
 ruling ourselves. But we were doing two 
 things which were novel in the world's his- 
 tory: we were setting up State legislatures 
 with unlimited powers; and we were setting 
 up a remote Federal Government which we 
 were anxious to keep in hand. Remember, 
 the State constitutions are older than the 
 Federal Constitution, and served as model 
 for it. And the framers had two things to 
 consider : they were trying to make a national 
 government which should be purely political, 
 that is to say, have to do with the nation as 
 a whole in its relation to other nations, 
 should look out, therefore, for their peace 
 and protect them in time of war; and also to 
 create and maintain State governments, at 
 home, to regulate the social affairs of the 
 people. To the States, therefore, was in- 
 trusted a man's liberty in relation to other 
 individuals, a man's private property, all 
 the regulation of his domestic concerns; to 
 the Federal Government, as such, the Fed- 
 eral Constitution gave but one power over 
 the States directly — but one right to in- 
 terfere with them — and that was, if they 
 ever ceased to maintain a republican form 
 of government. Short of that, short of es- 
 
 14
 
 THE MEANING OF THE CONSTITUTION 
 
 tablishing a monarchy or a tyranny, the 
 President of the United States and the 
 Federal Congress have no right to direct 
 interference with a State as such. 
 
 Now these two constitutions, State and 
 National, were, as you know, for the first 
 time put in writing by our forefathers — the 
 first written constitutions in the history of 
 the world. For the English Constitution 
 is not contained in any one writing. This 
 double safeguard, or set of constitutions. 
 State and National, were drawn up with 
 ends in view which were almost opposite 
 to each other. And this is the next thing 
 that I am going to ask you to remember. 
 What our forefathers were afraid of in the 
 Federal Government was an aristocratic or 
 autocratic rule, or a remote power which 
 might come to interfere with their domes- 
 tic affairs. Therefore, the influences which 
 restrained and limited the Federal Con- 
 stitution were democratic. Most of its re- 
 strictions were drawn up by men like Jeffer- 
 son, jealous of any government which was 
 not direct from the people. The State con- 
 stitutions, on the other hand, were rather 
 aimed at protecting the propertied classes — 
 
 15
 
 THE AMERICAN CONSTITUTION 
 
 the aristocratic classes — from the omnipo- 
 tent legislatures they were about to create. 
 Therefore the restrictions in the State con- 
 stitutions are mostly imposed on the demo- 
 cratic legislatures in the interest of property 
 or of order. It was the propertied classes, 
 the educated classes, which drew up the 
 State constitutions and insisted most upon 
 them; it was the democratic masses rather 
 who watched so jealously the powers about 
 to be given by the United States Constitu- 
 tion. Some things they were all united 
 upon, first of all the great Bill of Rights; 
 which is much the same thing in both; 
 those marvellous clauses which grew from 
 five sentences in Magna Charta to thirteen 
 in the Bill of Rights of 1689, when they had 
 had experience of the Stuart tyranny, and 
 to sixteen in the Virginia Bill of Rights, and 
 thirty in the Constitution of Massachusetts; 
 and, in the Federal Constitution, the first ten 
 amendments. These are the fundamental 
 things; and the people of the United States 
 refused to adopt the Constitution itself un- 
 less these ten amendments were promptly 
 added; and so it was done. These, in other 
 words, are the principles they cared for 
 
 16
 
 THE MEANING OF THE CONSTITUTION 
 
 most; and these are the principles of which 
 I shall try to explain the importance in 
 these lectures. Remember, it was the peo- 
 ple under Jefferson who said to the Federal 
 Government: **Thus far shalt thou go and 
 no farther"; it was the educated, propertied 
 classes, the Federalists at home in their own 
 States, who said the same thing to the State 
 legislatures to whose local government their 
 personal liberties and private fortunes were 
 about to be intrusted. And the historical 
 reasons for both are that during the Revo- 
 lution we had disastrous experience of om- 
 nipotent State legislatures, for the first time 
 clothed with boundless power and recklessly 
 using it, and in the Revolution also we had 
 experience of the weakness of a national 
 power which could not enforce its laws di- 
 rectly upon the people of the States. One, 
 therefore, is meant to frame a Nation, the 
 other to organize the States; but both were 
 carefully limited, the one in the interest of 
 the people and the States, the others in the 
 interest of the people alone. 
 
 But neither Constitution was or is a mass 
 of dry bones. The very definition of a 
 Constitution is — the expression of the peo- 
 
 17
 
 THE AMERICAN CONSTITUTION 
 
 pie's liberties; and both Federal and State 
 constitutions were devised to secure this; 
 but the one, rather poHtical liberty, in and 
 from the government at Washington; the 
 other, rather personal liberty, for the people 
 themselves and their possessions at home. 
 Remember, again, the two great differences 
 we have made from the English Constitu- 
 tion; first, the separation of the powers, and 
 second, the subordination of the government 
 and even of Congress or the State legis- 
 latures to the permanent will of the people 
 as expressed in a written document which 
 they alone could alter. And this is the great 
 difference between English freedom and 
 American freedom to-day. Under the Eng- 
 lish Constitution the House of Commons is 
 the people, is the sovereign; anything it does 
 is right, constitutionally speaking. With 
 us, not Congress, not the legislatures, but 
 the people remain sovereign. We never 
 have parted with our sovereignty. Our 
 legislatures. State and National, merely rep- 
 resent the people; and that in a carefully 
 delimitated scope of authority. If Con- 
 gress or a State legislature transcends that 
 authority which they derive from the peo-
 
 THE MEANING OF THE CONSTITUTION 
 
 pie, or when the Executive does so, even the 
 President of the United States, the courts are 
 bound to take no notice of such acts; not 
 to destroy such laws, as those who would 
 make the courts unpopular are fond of 
 saying, but to apply, where two rules clash, 
 the higher rule; that is to say, not the will of 
 the present President or Congress, but the 
 permanent will of the sovereign people as 
 expressed in the written Constitution. 
 
 I need no apology for presenting this sub- 
 ject at this time. The English people, in a 
 thousand years' experience, have found that 
 their liberties were never so really in danger 
 as when they knew it least, never so nearly 
 lost as under the kings they liked best. 
 They were in no danger from kings like 
 John; it was from John they won Magna 
 Charta itself. They were in no danger from 
 kings like Charles I. They had, it is true, 
 a big fight for their liberties then, but they 
 were never really in danger. It was Charles's 
 head that was. But under Elizabeth, under 
 Henry VIII, and under George III (who, 
 we must remember, was a very popular king 
 in England) they lost so many of their 
 birthrights that it took sometimes a century 
 
 19
 
 THE AMERICAN CONSTITUTION 
 
 to win them back. Of course it was easier 
 for them to lose, and harder to win back, 
 because their Constitution was not in writ- 
 ing, was not definite. It was always open 
 to Henry VIII or Charles I to deny that the 
 constitutional principle for which they were 
 contending really existed. But the fact re- 
 mains that these principles were destroyed 
 or were surrendered or taken away from 
 them usually when the people were of one 
 mind with the king; usually when they 
 themselves were willing to subordinate their 
 liberty birthrights to the passion for equality, 
 or to some other immediate end. And this 
 is natural. When a people is unanimous — 
 as we now are — on most of the things that 
 we desire, we may carelessly adopt a means 
 that seems to be a short cut that way, though 
 it be destructive in later times, or in other 
 hands, of government by the people itself. 
 And it seems as if a portion, or a party, of 
 our people were in danger of adopting the 
 European view of government and of law- 
 making — that law is a command of the sov- 
 ereign, not a custom of long growth among 
 a free people; that a legislature or a sovereign 
 nation is, or ought to be, omnipotent; and 
 
 20
 
 THE MEANING OF THE CONSTITUTION 
 
 that whatever power a European Great 
 Power had or has necessarily resides in our 
 Executive or in Congress — although the 
 whole history of our Republic is that it is 
 the first great attempt of a free people to 
 keep certain of such powers in their own 
 hands — at least until they choose to give 
 them up — and to base for all time their 
 own national career upon undying princi- 
 ples, as written in those tablets wherein our 
 people have expressed their will only to 
 be governed and their desire that by them 
 
 alone their Republic shall endure. 
 
 ****** 
 
 Now I am going to take up this course 
 in the inverse order of the title. That is 
 to say, I am going to speak of the liberties 
 of the people first. Broadly speaking, what 
 are they ? They may be divided into three 
 broad streams, each one of which is con- 
 tained in Magna Charta itself: The right 
 to life and liberty — the right to property, 
 whereby a man's liberty, that is to say, his 
 powers, are increased — and the right to 
 law. And I am going to take these up also 
 in their inverse order, beginning with law: 
 
 What is the right to law ? I am going to 
 
 21
 
 THE AMERICAN CONSTITUTION 
 
 try to define what I mean at the end of this 
 lecture, though I shall have time to amplify 
 it in the next; and let me say here that one 
 great difficulty I am going to have in this 
 course is in making you see what, in a sense, 
 you have always seen. We are not con- 
 scious of the air we breathe; but if some 
 Martian from another planet who got on 
 without air, should come to us, he would be 
 very conscious of it indeed. Now the right 
 to law is like this. The right to law, as 
 known to Anglo-Saxon peoples, is something 
 which has not any parallel in any other 
 country in the world and which never had 
 any like elsewhere in any time. It is utterly 
 unknown even to such countries as Germany 
 and France. It is so unknown that it is not 
 even understood there except by their stu- 
 dents; while it is hardly understood by us 
 just because we are so used to it that we 
 cannot understand anything else. In Ger- 
 many, if anybody injures you under pre- 
 tence of government authority, that is to 
 say, if he is the Emperor, or a member of 
 the government, or a judge, or a soldier, or 
 a policeman, because of that fact you have 
 no legal right to sue in the ordinary way. 
 
 22
 
 THE MEANING OF THE CONSTITUTION 
 
 The wonderful Anglo-Saxon principle, on 
 the other hand, is and always has been, 
 since it was re-established against the Nor- 
 man kings, that there is nobody so high as to 
 be above the law. If the emperor, or a soldier, 
 or a general, or a policeman, does what you 
 think he has no legal right to do, you can 
 have the law on him — a vulgar phrase, which, 
 like many vulgar phrases, is pithy with ex- 
 act truth. I repeat that in Continental 
 countries, to say nothing of Asiatic, there is 
 no such thing as having the law upon a 
 man who pretends to act under some gov- 
 ernment authority. They have a whole 
 system of privileged law — what they call 
 Administrative law — devised for the use of 
 government functionaries alone. From this 
 the plain citizens are excluded. But with 
 us, if the President of the United States 
 interferes with your liberty unlawfully, you 
 can resist him, both by force, in proper cases, 
 and always by suit in the courts. If a 
 magistrate arrests you without proper cause 
 you can sue him just as much as if he were 
 not a magistrate. If a commission seizes 
 your property, you can appeal to a jury. 
 Every English freeman, every American 
 
 23
 
 THE AMERICAN CONSTITUTION 
 
 citizen, is entitled to have his law — to have 
 his rights tested in his own courts — in his 
 own courts, mind you, not in some other 
 court in some remote place, or in some other 
 government tribunal — this was what they 
 dearly struggled for in England — not be- 
 fore a Star Chamber or a Government Board 
 or a Royal Commission — but in the plain 
 county common law courts — in his own 
 courts at home, and as against anybody. 
 He can sue anybody there, and he cannot 
 be haled away for trial to any lofty or re- 
 mote tribunal. Violation of this principle 
 by George III is what the Declaration of 
 Independence complained of: we were made 
 to stand trial in England, where we could 
 not bring our witnesses, or have the judg- 
 ment of our neighbors. This principle — 
 the right to law — equal law — was thor- 
 oughly established back in England as 
 early as the reign of Saxon Edgar, re-es- 
 tablished under Henry II, and is the car- 
 dinal difference between the rights of an 
 English citizen and those of other countries. 
 We have the right to law, and the law 
 against anybody; they have no right to law 
 against the government or those in authority. 
 
 24
 
 THE MEANING OF THE CONSTITUTION 
 
 This is a thing which Continental people 
 cannot understand and which Americans 
 or English, travelling in Continental coun- 
 tries, have always been so full of that it 
 brings them into difficulties. That is to 
 say, if a Frenchman is arrested by a man 
 in uniform, the last thing that would occur 
 to him is the notion that he has any right 
 to resist or to make question. At most he 
 may humbly ask what his offence has been. 
 An Englishman or an American, on the other 
 hand, when his personal liberty in any way 
 is interfered with by anybody, whether a 
 soldier, or a policeman, or a general, or a 
 judge, wishes at once to know, what for ? 
 and he has the right to know, what for! and 
 to test it in his own law courts. And that 
 permanent and universal right to law, as 
 against anybody, belonging to everybody, 
 is the first and almost the greatest of the 
 people's liberties. 
 
 And now, what is this law ? and this 
 brings out another fundamental difference 
 between Anglo-American and European 
 freedom. The English notion of law is 
 diametrically opposed to the Continental, 
 Norman, or Roman notion — as different as 
 
 25
 
 THE AMERICAN CONSTITUTION 
 
 black from white, or as sound from sight. 
 The two conceptions of law are so different 
 that there really is almost no relation be- 
 tween them — and asking you kindly to re- 
 member this difference, I will close with it. 
 In brief, the English notion of law is the 
 custom or usage of a free people, not orig- 
 inally expressed in writing, and not com- 
 manded by anybody except, possibly, the 
 people themselves. The Continental notion, 
 which was the Roman notion and hence the 
 Norman notion, is the command of a sov- 
 ereign to his subject, necessarily, therefore, 
 written, and made new by the king. It is 
 created by the government, to whom the 
 people are subservient; not born of the 
 people, of whom the government itself is 
 the creation. It may bear no relation to 
 custom or usage, or past history or even 
 common sense. It is an order, as from a 
 master to his slave. English law — Saxon 
 law — on the other hand, is the usage that a 
 free people have had, a matter of custom 
 which everybody is supposed to know, and 
 which, in theory at least, has lasted for all 
 time, something like a law of nature. It is 
 not commanded of you by anybody, in 
 
 26
 
 THE MEANING OF THE CONSTITUTION 
 
 original theory; it is simply that code of 
 customs by which your acts are judged and 
 which may enable you to take the law into 
 your own hands — for this was the original 
 remedy. That is to say, in the year 600 
 or 700 there were certain cases, certain 
 offences, which put a man out of law; that 
 is the origin of the word ''outlaw." There- 
 upon you could kill, him, or avenge yourself 
 on him, as the law allowed. If a man took 
 your cattle, or if he injured your person, you 
 had the right to avenge yourself upon him 
 to a certain definite extent, ranging all the 
 way from killing him, down through per- 
 sonal chastisement, to a mere money fine. 
 You executed the law yourself; or your 
 neighbors helped you. It was not done for 
 you by a king. Later, as civilization im- 
 proved, it was done for you by the whole 
 people, through their courts; originally by 
 your neighbors, witnesses, who stood by 
 you in surety. 
 
 This difference is so radical that we must 
 never lose sight of it. English law, Ameri- 
 can law, is in theory the established customs 
 of a free people. All other law in the world 
 is the order of a sovereign to a subject. 
 
 27
 
 THE AMERICAN CONSTITUTION 
 
 Under the Norman kings, it is true, writs 
 were brought in the name of the king, *' We, 
 John, command you," etc., but this was 
 only their formula. Writs in our States run 
 in the name of the people; for instance, "In 
 the name of the people of the State of New 
 York, by the grace of God free and inde- 
 pendent." When a trespass was committed 
 in Norman England, it was claimed to be 
 committed against the peace of the king, 
 and so it is termed in the law process still; 
 with us, it is against the peace of the people. 
 The attempt of the Norman kings to intro- 
 duce European notions of law, Continental 
 notions of royal authority, was successfully 
 resisted by the English people in the first 
 two centuries after the Conquest, so that in 
 substance their law is the same as ours; but 
 the effort of the Norman kings to introduce 
 Continental ideas remains in the words that 
 I have quoted— ''against the peace of the 
 king"; and suits are still in theory tried 
 coram rege — before the king as the fountain 
 of justice. Stubbs tells us that in a sense 
 the great struggle of the English people 
 under the first Norman kings was to es- 
 tabhsh that the peace of the realm was the 
 
 28
 
 THE MEANING OF THE CONSTITUTION 
 
 peace of the people and not the king's peace. 
 Not a mere phrase, you see, but a very real 
 meaning. Is it the government that is 
 sovereign, or is the government but the 
 servant.? They struggled successfully; and 
 all vestige of the Norman attempt to foist 
 European ideas of law and government upon 
 the English people has been swept away, 
 with the exception of a few mere forms. 
 We shall find the same thing when we come 
 to law-making. Under European theories 
 the law is made by the king, as I have said; 
 it is the order of the Crown to the subject. 
 Under English theories, it is made first by 
 the whole body of the people, then by their 
 representatives in Parliament. The Norman 
 kings insisted on their royal form, and every 
 act of the British Parliament is still signed 
 "The king so wills"; but Parliament or the 
 people very early got the substance back, 
 and established their right to make the laws 
 themselves. It is characteristic of the Eng- 
 lish people not to care for forms provided 
 they get the substance. So the first aspect 
 of English constitutional history since the 
 Conquest is the effort of a free people to re- 
 establish two ideas — the right of everybody 
 
 29
 
 THE AMERICAN CONSTITUTION 
 
 to law, and the right to law as it was in the 
 time of Edward the Confessor; that is to 
 say, to the customs of the free Saxon people 
 and not the orders of a feudal lord. And 
 every Norman king after William was made, 
 on his coronation oath, to promise this — ^the 
 laws of Edward the Confessor — until Magna 
 Charta came. After that they promised to 
 respect Magna Charta instead. 
 
 And now the reason why we had to have 
 written constitutions, not unwritten as in 
 England, is because with us the people 
 is the sovereign, not, as in England, now 
 the House of Commons and formerly the 
 king; and our legislatures cannot make any 
 kind of law they will, but only such as the 
 people have chosen to allow. When you 
 have the people sovereign, possessing all 
 powers and only parting with such of them 
 as they choose to their own legislatures or to 
 their own executive, you see it is necessary 
 to have a written constitution in order to 
 make clear just what powers the people have 
 given away. Without a constitution, our 
 legislatures would be, like the English Par- 
 liament, omnipotent; just as without a con- 
 stitution the English king would be omnipo- 
 
 30
 
 THE MEANING OF THE CONSTITUTION 
 
 tent. The one end and aim, therefore, of 
 a constitution is to protect the people's 
 rights, both the rights of the whole people, 
 or any part of the people, or even of one man 
 as against the people, in such cardinal rights 
 as by our constitutions he is declared not 
 to have given away; to protect them against 
 either king or legislature. This is consti- 
 tutional government. The object of re pub- ^ 
 lican government is to enforce the will of 
 the majority; the object of constitutional gov- ^ 
 ernment is also to protect the rights of the 
 minority; to guarantee to each and every 
 man, to every class, the essential rights that 
 he must never part with. And it is those 
 cardinal rights, the liberties of the people, 
 which form the first subject of these lectures, 
 and the first, and in some respects the great- 
 est of them, is this right of every man to law. 
 
 31
 
 II 
 
 CONSTITUTIONAL RIGHTS PECULIAR TO 
 ENGLISH AND AMERICAN FREEMEN 
 
 OUR Constitution adds to the English 
 two great principles, the separation 
 of the powers of government so that the 
 same man or body of men can never both 
 make the laws and administer them, or ad- 
 minister them and judge those who break 
 them; and that our people are protected not 
 only from the Executive power, but from 
 reckless or unjust legislation, especially by 
 the National government; by defining in a 
 written Constitution just how far that gov- 
 ernment may interfere with the people's 
 domestic affairs, and leaving the determi- 
 nation of that question to the United States 
 Supreme Court. And it differs from it in 
 the creation of two governments side by 
 side, the National government to protect 
 and administer the affairs of the Nation — 
 not a mere league or federation, as in all other 
 
 32
 
 CONS in UTIONAL RIGHTS 
 
 historical examples, but with laws and courts 
 working from the centre at Washington di- 
 rectly on the States and on the people — and 
 at the same time carefully retaining the State 
 governments to control substantially all re- 
 lations of the citizens among themselves, to 
 protect their lives and liberties, regulate 
 their rights of property and both raise and 
 expend the money taken from them by way 
 of taxation. For, remember, the National 
 government was practically given no power 
 of imposing taxes directly on the people, and 
 this alone would indicate that it was not 
 supposed to concern itself overmuch with 
 their domestic affairs. Our written con- 
 stitutions express the permanent will of the 
 people, while our laws, our Acts of Congress, 
 or our State statutes, are merely the opinion 
 of a present majority of their representatives ; 
 and in this country the people are sovereign 
 and not the Legislature, as in England, or 
 the Executive, as in European countries. 
 A wonderful self-restraint was shown by 
 our Constitution makers when they made 
 ours a protection against our own legis- 
 latures as well as the Executive; an enlight- 
 ened jealousy of too much government of 
 
 3i
 
 THE AMERICAN CONSTITUTION 
 
 any sort, of the Federal Congress because 
 it was remote and, as they feared, undemo- 
 cratic, and might grow too powerful, so as 
 to take the liberties away from the people or 
 from the States; and of our State legislatures, 
 which had exercised, during the Revolution, 
 indefinite powers, when they put restrictions 
 in the State constitutions limiting them also. 
 Now this jealousy has not decreased, but 
 rather increased as time goes on. The later 
 State constitutions, especially those of the 
 far Western and Southern States, most not- 
 able of all, that of Oklahoma, increase very 
 much the number of these restrictions; so 
 that there is not to-day in the Union prob- 
 ably any State whose legislature has so much 
 power as that of the State of Massachusetts, 
 while in these newer States their wings are 
 clipped so much as' almost to take away their 
 character of representative government. Still 
 more, of late, is this being done where, as in 
 the newer Western States, by the initiative 
 and referendum, the people are allowed not 
 only to make laws directly without the inter- 
 vention of any legislature, but to have a 
 veto whenever they demand it on the acts 
 of the legislature itself. On the other hand, 
 
 34
 
 CONSTITUTIONAL RIGHTS 
 
 I suppose the fear of the powers of the Fed- 
 eral Government has, on the whole, de- 
 cidedly decreased in the one hundred and 
 twenty years since the Federal Constitution 
 w as ad opted. The reason for this was, of 
 course, the Civil War, and the issues which 
 led up to it; which showed conclusively to 
 all of us that the people of the United States 
 must be considered one nation, and that 
 the government must be truly national and 
 not merely a federal compact. Still, the 
 Federal Government, as such, has no direct 
 power over the States, except in the one in- 
 stance of their failing to maintain a re- 
 publican form of government. Nothing 
 has happened in that particular to alter 
 the Constitution or our understanding of it 
 during the last hundred and twenty years. 
 The term ''States' rights" is a misleading 
 one to-day, because, as a result of the War, 
 we are apt to think of it solely in connection 
 with a State's right to secede. The object 
 of the Civil War was to settle this one point. 
 A State has no right to secede, except in 
 one instance. Oddly enough, no one ap- 
 pears to have noticed this. Just as the 
 United States Government may interfere if 
 
 35
 
 THE AMERICAN CONSTITUTION 
 
 a State does not keep up a republican form 
 of government, so a State may get out of the 
 Union under the terms of the Constitution 
 itself, if it be ever deprived of its two Senators 
 in the Senate. All other rights of a State — 
 except secession from the Union — all other 
 rights of the people, remain as they w^ere; 
 except only that the States are now ex- 
 pressly prohibited from making laws aimed 
 against the negroes. It is still true that 
 nobody is with us omnipotent, neither the 
 legislature, nor the army, nor the President. 
 Universal power is placed back in the lap 
 of the sovereign people itself, as it was a 
 thousand years ago, before William the 
 Conqueror was born. We are, in a sense, 
 more English than the English. We have 
 absolutely gone back to primal Anglo- 
 Saxon principles. 
 
 We have already discussed the people's 
 liberties and observed that they might, for 
 convenience, at least, be divided into three 
 general fields — rights to law, rights to liberty 
 and rights to property. All this was clearly 
 expressed in Magna Charta, though I 
 warned you against the mistake of suppos- 
 ing that they existed there for the first time. 
 
 36
 
 CONSTITUTIONAL RIGHTS 
 
 Magna Charta itself is, afrti-pui;p^rt#44^-4e, 
 bmt the recognition by King John of the 
 peoples' liberties as they always existed. 
 It begins with the statement that it is made 
 by the advice of his people, and goes on with 
 the words, "We have by this our present 
 charter confirmed''; does not even say, 
 enacted or granted. I then took up the Right 
 to Law, and tried to show you how important 
 it was, although so familiar that we almost 
 forget to think of it; and how unusual it is in 
 the science of government; how it exists with 
 none but Anglo-Saxon peoples. The right 
 to law, in other words, not only protects one 
 man from another, but it protects any man 
 or class of men, even the humblest, from the 
 most powerful, or from the government 
 itself, minorities against majorities, indi- 
 viduals against the government. For that 
 reason no officer, not even the President, 
 or the army, is placed above it. To take 
 all— iikretration : you may remember that 
 curious story in a German city a year or 
 two ago, where a crook, having borrowed 
 or stolen a captain's uniform, marched into 
 a considerable town, ordered the first com- 
 pany of soldiers he met to follow him, went
 
 THE AMERICAN CONSTITUTION 
 
 into "the town hall, ordered the rnayor and 
 council to hand him over the money that 
 was in the treasury, and walked away with 
 most of it. It never occurred to anybody, 
 not even to the mayor of the city, to raise 
 any question as to this, proceeding. The 
 uniform was sufficient and covered any act. 
 It was only when the unsuspecting mayor 
 went to Berlin that the fraud was discov- 
 eredf On the other hand, take another 
 example here in Boston: in a time of riot 
 — in a time of real disorder — a company 
 of soldiers on State Street was ordered by 
 the captain, in order to protect themselves 
 against attack to fire on a mob. They did 
 so, and some of the mob were wounded or 
 killed. Nevertheless, and to the surprise 
 of nobody, not even King George himself, 
 who was nevertheless not very fond of Bos- 
 ton at that time, the captain who gave that 
 command was promptly tried for murder. 
 
 This suggests the next point peculiar to 
 Anglo-Saxon liberty, and that is that there 
 is only one kind of law — the common, ordi- 
 nary law of the people's courts. We have 
 no separate law for government, no ad- 
 ministrative law, no martial law. People 
 
 38
 
 CONSTITUTIONAL RIGHTS 
 
 talk about martial law, and martial law 
 does exist or may exist in any country but 
 England and the United States — never with 
 us. That is another of those fundamental 
 truths very commonly lost sight of by us 
 and by our newspapers, who all the time 
 talk glibly about martial law as if such a 
 thing could exist in England or our own 
 country. That was the great complaint 
 against Charles II, and is the thing most 
 spoken of in the Bill of Rights given by 
 King William, that the habit of Charles 
 was to try people by martial law contrary 
 to the laws of England. In an enemy s 
 country, in time of actual warfare, there may 
 be such a thing as martial law known to 
 English courts; although even that is not 
 really law, but just the will of the com- 
 manding officer. But in no time of peace 
 and in no domestic State, can there ever be, 
 lawfully, martial law. 
 
 Even for the government of the army, 
 to establish a military law to control the 
 army and navy, they have, under the Con- 
 stitution of England, to make a new act 
 of Parliament each year, and in the same 
 manner in this country our Constitution 
 
 39
 
 THE AMERICAN CONSTITUTION 
 
 forbids any appropriation of money to sup- 
 port the army for more than two years. 
 MiHtary law, you understand, is the law 
 which governs the army and perhaps also 
 the militia when in actual service. There 
 must, of course, be something of this sort; 
 but it is not at all the same thing as martial 
 law, which means military rule as applied 
 to the free people of the country. United 
 States soldiers in San Francisco, United 
 States soldiers in Pennsylvania at the time 
 of the late coal strike, whenever they caused 
 the death of a human being, whether in 
 self-defence or not, and whether in protec- 
 tion of property or not, might be, and 
 usually were, duly and properly tried for 
 murder. Therefore, the army and all that 
 it means, military system, militant civiliza- 
 tion, isfforouTs. The complaint of stand- 
 ing armies was first made in England under 
 the Stuarts, and they never had any before 
 that time; the Petition of Rights addressed 
 to Charles I makes much of it, and the Bill 
 of Rights as finally granted after the English 
 Revolution by King William expressly says 
 that "the raising or keeping a standing army 
 within the kingdom in time of peace, unless 
 
 40
 
 CONSTITUTIONAL RIGHTS 
 
 with the consent of ParHament, is contrary 
 to law." 
 
 The other distinctive thing about law in 
 connection with Anglo-Saxon ideas of liberty 
 is that it must be the people's law and the 
 law of nearby courts; it must not come, save 
 where absolutely necessary, from a distant 
 and remote place; nor must people be re- 
 quired to go to that distant place to be tried. 
 This is the distinctive achievement of the 
 first two or three centuries after the Con- 
 quest. They won back the notion of local 
 law, local self-government, and the right to 
 be tried by their neighbors in nearby courts. 
 One of the grievances stated in our own 
 Declaration of Independence was the prac- 
 tice of King George III of transporting 
 Americans beyond the seas to be tried for 
 offences; and it also complains that he "has 
 kept up standing armies in times of peace 
 without the consent of our legislatures, and 
 has affected to render the military indepen- 
 dent of and superior to the civil power," and 
 as bearing particularly on the right to law, 
 note that it also complains that he "has 
 made judges dependent on his will alone for 
 the tenure of their offices and that he has 
 
 41
 
 THE AMERICAN CONSTITUTION 
 
 called together legislative bodies at places 
 distant from their homes." , Lastly, I tried 
 to make it clear to you that our law itself 
 differs world-wide from Continental or 
 Roman law, in that it is always in theory 
 the custom, that is, the will, of the people, 
 and not the command of a sovereign to a 
 subject. Finally, the reason that our Con- 
 stitution was written and not, as in England, 
 unwritten, is that with us the people are 
 sovereign, and therefore must put in writing 
 the regulations which they wish to impose 
 on their own legislatures. 
 
 Closely connected with the right to law, 
 is, of course, the right to liberty, the one 
 right standing guard to the other. Now 
 what is this right to life and hberty? The 
 right to life, of course you understand, and 
 that right at least is shared by the people of 
 most civilized countries. Even the govern- 
 ment is only allowed to take away a man's 
 life under due form of law. But the word 
 liberty is of much wider scope. It means, 
 first and foremost, the right of a man not to 
 be restrained, not to be put in jail, not to 
 be confined. That, of course, you under- 
 stand also; but here again we find the same 
 
 42
 
 CONSTITUTIONAL RIGHTS 
 
 world-wide difference between Anglo-Saxon 
 notions and Continental notions of a man's 
 rights. When with us a man is arrested by 
 another man, he brings an action for false 
 imprisonment. If arrested by a soldier or 
 policeman, he not only may do that, but he 
 demands to know at the time what he is 
 arrested for, and asks to be set at large or 
 released on bail if arrested for a bailable 
 offence. And the law is so jealous of this 
 right that it has steadily guarded it in a 
 thousand years in this most simple and direct 
 form; a writ corresponding to habeas corpus 
 is mentioned in Magna Charta, which says 
 that it shall not be denied, and shall be given 
 without cost; and the clause just before that 
 says that no writ shall in future be issued so 
 as to cause a free man to lose his court. 
 That is to say, to take him away from his 
 local jurisdiction and take him before the 
 distant kings. Now, there are practically 
 only three roads of tyranny, one to destroy 
 a man's life, another to take away his lib- 
 erty, and the third to deprive him of his 
 property; and the second is the more usual 
 and effective one. For six hundred years 
 the kings, Norman, Tudor and Stuart, en- 
 
 43
 
 THE AMERICAN CONSTITUTION 
 
 deavored to get around this writ of habeas 
 corpus; to arrest people and confine them 
 or restrain them without trial and without 
 telling why. As a result the great Habeas 
 Corpus Act was passed after the English 
 Revolution, which made this weapon of 
 liberty complete. Not only must the writ 
 be given at once and, as a matter of course, 
 gratis, but it had to be open to everybody 
 and must be granted at any time, by any 
 judge, day or night, in vacation or in term 
 time. The person or power restraining a 
 person of his liberty must produce him with- 
 in a short time and the prisoner be dis- 
 charged within two days unless it is shown 
 that he is under indictment for an offence 
 not bailable. 
 
 Now even to-day — and I have made care- 
 ful inquiry — I cannot find that there is any- 
 thing corresponding to this in Germany, 
 France or any Continental country. There, 
 a man may not be deprived of his liberty by 
 another individual; but if he is taken into 
 custody by a Government, in any of its ca- 
 pacities, it is not for him to reason why. 
 
 But the right to personal liberty is much 
 more than even this. It includes also the 
 
 44 
 
 I
 
 CONSTITUTIONAL RIGHTS 
 
 constitutional right of a man to go and come, 
 to emigrate, and, if a citizen, to return; 
 and, finally, the right not to be banished. 
 It was early established as an English 
 principle, and it is so with us, that banish- 
 ment from the country cannot be imposed 
 for any offence. On the other hand, a man 
 may not be restrained if he wishes to go out 
 of the country; and in the United States he 
 has the right freely to move from one State 
 to another. This right is so jealously 
 guarded that in the Supreme Court of the 
 United States a law of Nevada was held 
 bad which merely imposed a tax of one 
 dollar on stage-coach passengers who might 
 pass through the State. The right of being 
 unconfined when you were still, and of mov- 
 ing about freely when you wished to, even 
 to the extent of leaving the country when 
 you like, is, therefore, one of our essential 
 liberties. 
 
 And now there is another great difference 
 between English and American liberty under 
 Saxon law and the liberty of other peoples, 
 a fundamental difference between the entire 
 law system of the English people and of all 
 Continental peoples, which began at the 
 
 45
 
 THE AMERICAN CONSTITUTION 
 
 very beginning, and departure from which 
 is still a legitimate source of grievance, per- 
 haps, among our laboring classes. Too 
 much has, perhaps, been made of the phrase 
 "government by injunction." I have no 
 desire to attack the valuable procedure of 
 courts of equity, a very necessary method 
 of ordering people to do or not to do certain 
 acts. Still there is a legitimate objection to 
 stretching this great power too far, which 
 is evidently vaguely felt by large classes of 
 our citizens, but no one, so far as I know, 
 has ever noted that it goes down to the very 
 root of the theory of English liberty under 
 the law. Now, if I can only make clear 
 what I mean by this difference in the few 
 minutes which remain to me, you will under- 
 stand what is, perhaps, the greatest differ- 
 ence of all between our notions of what law 
 ought to do for and against the individual, 
 and the notions of all Continental countries. 
 You remember that I said that the Con- 
 tinental notion of law was the order of a 
 sovereign to a subject, coupled with the 
 threat of punishment if he did not obey. In 
 other words, the Continental notion of law 
 is to make a man do something or not to 
 
 46
 
 CONSTITUTIONAL RIGHTS 
 
 do something, and this is the Oriental notion 
 of law also. You have only to read any tale 
 in the Arabian Nights to note, what still re- 
 mains true of all Asiatic peoples, that the 
 caliph or the shah or the grand vizier, when 
 one man complains against another, if he 
 take the side of the person complaining, at 
 once orders that other man to do something 
 or to refrain from doing something. This is 
 ingrained in the whole notion of Oriental 
 and even of Roman law. Yet it is just one 
 of those basic facts which may come to you 
 with some surprise when I tell you that this 
 idea has absolutely no place in Anglo-Saxon 
 law or the common law of England or Amer- 
 ica. The common law, as we lawyers say, 
 speaks only in damages. It has no notion 
 of ordering a free man to do something 
 against his will. Now, this I know may 
 surprise you, but it is the exact truth and 
 not even an exaggeration. Moreover, it 
 dates from a time where man's memory 
 runneth not to the contrary, and still re- 
 mains as true as it ever was of the common- 
 law courts to-day. If one man injure an- 
 other in civil matters, if you win your case 
 in a civil action, the defendant — the other 
 
 47
 
 THE AMERICAN CONSTITUTION 
 
 man — is not made to do anything. He has 
 only to pay you a certain sum of money. 
 In the same way, even in criminal cases, 
 cases brought by the State against a person 
 who has broken a law, if a man is found 
 guilty, he is never ordered to do anything, 
 not even to make affirmative restitution, as 
 might be the case in an Oriental country; 
 he is punished, either by death or by im- 
 prisonment, or, again, made to pay dam- 
 ages in the nature of a fine. In the very 
 first glimpse we have of the Saxon peoples in 
 England we find the same system prevailing. 
 The notion of the fine, however, was car- 
 ried to an extent that would possibly seem 
 absurd to-day, for then every man had his 
 price literally. That is to say, the life of 
 every man was worth a certain definite sum. 
 A member of the royal family was worth 
 ten times more than a baron; the life of a 
 baron, ten times more than an ordinary 
 freeman and so on. If a man was mur- 
 dered and not avenged by his kindred — 
 which they had a perfect right to do — he 
 was liable to pay a fine to the kindred of the 
 person slain, and this principle went down 
 through minor criminal offences. What the 
 
 48
 
 CONSTITUTIONAL RIGHTS 
 
 law did was to determine what actions were 
 right, and the nature and amount of the 
 penalty for such as were wrong. It never 
 ventured to order a man to do any definite 
 act. That notion was altogether too for- 
 eign to the ingrained ideas of personal 
 liberty which characterized the English 
 people. 
 
 Now, that principle is just as true to-day 
 in 1907 as it was in 707; and when an in- 
 junction or an order of a court of chancery 
 is served on an American freeman, he resents 
 it just as much as his ancestors would have 
 done, though he does not know how much 
 historical reason and justification he has 
 for his dislike of such process. For in- 
 stance, one of the great grievances in the 
 railway strike of 1903 and in the recent coal 
 strike of West Virginia was that judges or- 
 dered men riot to quit their work — which 
 amounts to very much the same thing as 
 ordering them to go on with it. Our com- 
 mon law does not recognize the right of any- 
 body, judge, officer or United States Presi- 
 dent, to order a man to work if he does not 
 wish to, or, indeed, to order him to do any 
 definite act or thing. If he does wrong, he 
 
 49
 
 THE AMERICAN CONSTITUTION 
 
 is liable under the common law for the 
 damages caused by his act, liable not only 
 to the person injured, or, if the offence be 
 criminal, to a penalty or a punishment im- 
 posed by the State, that is, by the whole 
 people in their courts. But he is not sup- 
 posed to be ordered by anybody to do a 
 thing that he does not wish to do, however 
 harmless it be, or to abstain .from any act 
 that he wishes to perform, not in itself crim- 
 inal or unlawful. 
 
 Now, how did this un-English right of the 
 injunction or the court order get in ? It is 
 just an example of a growth upon the Eng- 
 lish system of ideas brought over from 
 Normandy, and enforced first by Norman 
 kings and then by their chancellors or chief 
 justices. It is really a Continental or Ro- 
 man law notion, and repeats, in last analy- 
 sis, the power of a king to order his sub- 
 jects in any way he will. At first, in very 
 early times after the Conquest, this power 
 was exercised direct by the King or by the 
 King and Council. He very soon got into 
 the habit of handing it over to his high 
 judicial officers, one of whom, known then 
 as the Justiciar, was given this jurisdiction 
 
 50
 
 CONSTITUTIONAL RIGHTS 
 
 rather in criminal matters, while the other, 
 known as the Chancellor, was given it in 
 civil affairs. From'the Justiciar historically 
 grew the famous court of Star Chamber, 
 which was abolished after the English 
 Revolution, and which exercised the royal 
 power of the Crown to try men for their 
 actions and order their doings in Crown 
 cases, that is, in criminal matters, or matters 
 supposed to be criminal. From the other 
 grew the Court of Chancery, which existed in 
 theory to mitigate the rigor of the common 
 law or to supplement it where inadequate. 
 This part of its jurisdiction is, of course, 
 sound and good; but it also shared this 
 extraordinary un-English, Norman power 
 of ordering a free citizen to do something 
 that he did not wish to do; and that power is 
 found amazingly convenient in modern 
 times where it is desired to control the ac- 
 tions of large bodies of men who individu- 
 ally, perhaps, are not responsible in large 
 money damages, or when it is either in- 
 convenient or impractical to exert the rem- 
 edy of the common-law damage suit in the 
 courts. 
 
 Under our industrial system a state of 
 
 51
 
 THE AMERICAN CONSTITUTION 
 
 things has developed where the vast bulk 
 of business in this country is done by 
 persons acting together under the name of 
 corporations; and under our Federal sys- 
 tem, under the Federal Constitution, where 
 any one of these corporations is chartered 
 in a different State from that where the 
 dispute arises or where its adversary lives, 
 that corporation has the right to take the 
 litigation and the power of regulating its 
 affairs away from the local courts — away 
 from the State courts sitting where the people 
 live who are most directly concerned — up 
 to the United States court, probably, in the 
 first instance, some distance away, and ulti- 
 mately, of course, to the Supreme Court 
 at Washington. Under the recent proposal 
 of having all corporations which do inter- 
 state commerce business (and nearly all 
 corporations do some) chartered by the 
 United States Government, all litigation of 
 any sort in which they are concerned would 
 always be taken away from the State courts, 
 from the local courts, where their mines or 
 their mills are situated, and carried to the 
 Circuit Court of the United States or to the 
 Supreme Court at Washington. It has al- 
 52
 
 CONSTITUTIONAL RIGHTS 
 
 ready grown to be the practice of most 
 companies not to rely on the State courts or 
 the local courts near where their works are, 
 which, with or without reason, they distrust, 
 as being more in sympathy with the people, 
 but to go straight into the Federal courts and 
 into the Federal Courts of Chancery under 
 this chancery jurisdiction we are discussing, 
 whenever they can; and instead of suing in 
 damages or using the local police protection, 
 getting an order from the Federal judge, 
 addressed to the whole body of their em- 
 ployees, or even to all the world, ordering 
 such people to do or not to do what they 
 wish or what they complain of. This order, 
 as you know, is termed an injunction — 
 originally the highest writ of the royal pre- 
 rogative in England, but now given to all 
 Federal judges of any description, and even 
 to many judges of lower courts as well. This 
 is not the time, nor do I know that I shall 
 have time further, to go into this matter. 
 The only point from which it interests us 
 to-night is that it shows up this fundamental 
 difference between English theories of law 
 and Continental ones; that under the Eng- 
 lish system a free man is never to be ordered 
 
 53
 
 THE AMERICAN CONSTITUTION 
 
 by the courts to do something, but only to 
 stand by the consequences of his acts in 
 damages, if he ought to pay damages, or 
 be imprisoned, if he ought to be imprisoned; 
 while under royal Norman ideas this high 
 power of the injunction writ or the manda- 
 mus grew from the old power of the Norman 
 absolute monarch to order his subjects to do 
 certain definite things or to act in a certain 
 definite way. Under it, as you know, if a 
 man disobeyed, he was punished summarily, 
 without a trial, in what we call contempt 
 process; this also, therefore, being foreign 
 to ordinary English notions of procedure, 
 which always involve a hearing and a chance 
 to produce witnesses and a jury trial. 
 
 Chancery powers are most valuable, and it 
 is in my opinion a great mistake to do away 
 with them, as they have practically done in 
 the new State of Oklahoma. Nevertheless, 
 if abused, they will now, as they would have 
 a thousand years ago, cause an English 
 people such resentment that they will abol- 
 ish the thing entirely instead of regulating 
 it properly. The one point I now wish to 
 make is that this is a genuine distinction; 
 and, therefore, we may call this the third 
 
 54
 
 CONSTITUTIONAL RIGHTS 
 
 great difference under which English notions 
 of Hberty differ from the Hberty of people 
 in Continental countries. An Englishman 
 or an American cannot be ordered to do a 
 thing that he does not wish to do, to carry 
 out a certain line of action, or to perform 
 a certain service. Indeterminate services 
 for an indefinite time or even for a long time 
 under the English common law were con- 
 sidered the same as slavery. A man is 
 liable for the consequence of his acts, but 
 no one can control them or direct them 
 against his will — no individual, no officer, 
 nor the State itself. 
 
 But the right to personal liberty is far 
 more than this also. It includes not only the 
 right to be free and move around, to do what 
 one will and be responsible for one's own 
 acts, but — and this is getting to be the most 
 important of all to-day — it includes the right 
 of a man to labor at any trade, to go into any 
 business, in short, to earn his living, or to 
 exercise his functions or faculties in any 
 manner soever that he at any time choose 
 without any restraint or hindrance or com- 
 bination against him on the part of the State 
 or of others. This is the great personal lib- 
 
 55
 
 THE AMERICAN CONSTITUTION 
 
 erty right, and the one that we are still bat- 
 thng over to-day, for the other two or three 
 have been successfully established. No one 
 seriously pretends any more to take away 
 a man's life or personal liberty without due 
 process of law. But the right to control a 
 man, or to interfere with him in his business 
 or labor, or trade, is being asserted and re- 
 asserted more and more, both by his em- 
 ployers and his employees, and by his com- 
 petitors and by his fellow-workmen, or even 
 by the United States or by the States. Now, 
 let us see how those words read in the first 
 written expression of them, that is, in the 
 Magna Charta of Henry III and of John. 
 John, in his charter, the earliest, uses the 
 simple expression, "No free man shall be 
 taken, or imprisoned, or disseised, or out- 
 lawed, or exiled, or any ways destroyed, nor 
 will we go upon him, nor will we send upon 
 him unless by the lawful judgment of his 
 peers or by the law of the land"; but in the 
 re-issue of the charter by Henry HI the very 
 significant explanation is added after the 
 word "disseised" (which, as you know, 
 means deprived of): "No free man shall 
 be deprived of his freehold or of his liberties 
 
 56
 
 CONSTITUTIONAL RIGHTS 
 
 or of his free customs,'' and it is no fantastic 
 explanation but was thoroughly understood 
 at the time that this meant also the right to 
 trade or labor, the right to earn one's living, 
 and the right to be protected both from State 
 hindrance and from monopolies; and the 
 great Coke, commenting on this clause, says 
 that the word "Liberties" means the "gen- 
 eral freedom possessed by the people in Eng- 
 land, and that monopolies in general are 
 contrary to the Great Charter." There are 
 also other expressions in Magna Charta 
 showing this. It begins by saying " We have 
 granted to all the freemen of our kingdom 
 all the unwritten liberties to be had and 
 holden by them and their heirs forever. . . . 
 The City of London shall have all its ancient 
 liberties and free customs, as well as other 
 cities, boroughs, towns and ports." This 
 particularly means, rights to a livelihood, 
 rights to labor and to trade, and also the 
 rights of the Guilds, or, as we should say, 
 trades unions, which already existed in the 
 towns at that time. And I may say right 
 here that there were two ways that a man 
 got free in England: You probably know 
 that at the time of the Norman Conquest 
 
 S7
 
 THE AMERICAN CONSTITUTION 
 
 there were still some slaves — 25,000 are 
 recorded in Doomsday Book — and several 
 centuries after they were called villeins, that 
 is to say, farm laborers who were attached 
 to the land, not paid in money wages, and 
 who were not allowed to leave their master's 
 farm or seek service elsewhere. This class 
 was very numerous indeed. Now these 
 two ways by which a villein or slave could 
 always get free in England were, first, by 
 owning land; and secondly, by joining the 
 guild of a trade, in a town, and working at 
 it for a year and a day. In a sense, there- 
 fore, labor is the source of freedom in Eng- 
 land; for many millions more Englishmen 
 got free through this door than by any other 
 way. This, therefore, is a right peculiar 
 to American and English freedom — the 
 right to labor or exercise any trade. On the 
 Continent, the absolute right of a man to 
 labor and trade was never recognized, nor 
 the right to earn money or make a profit in 
 any way he chose. He was not protected 
 from the competition of the State or other 
 hostile combinations or from monopolies 
 of any kind; for, while the English Constitu- 
 tion early recognized the Guilds, it at the 
 
 58
 
 CONSTITUTIONAL RIGHTS 
 
 same time was careful to provide that their 
 by-laws should be reasonable and to forbid 
 anything that was in restraint of trade. I 
 can show you the statutes, almost as old as 
 Magna Charta, which recite that the Guild 
 of a certain town has made a by-law, or 
 combined in such a way as to prevent other 
 people from exercising their trade — and 
 such by-laws declared for that reason un- 
 lawful. I can even show you an actual case 
 which is as modern as the Sugar Trust in its 
 principle; in fact it complains of the very 
 thing that our trusts are now said to do. 
 In 1 22 1 the Abbot of Lilleshall went to court 
 and complained "that the bailiffs of the 
 town of Shrewsbury had made many in- 
 juries against his liberty in that they have 
 caused proclamation to be made in the town 
 that none be so bold as to sell any mer- 
 chandise to the Abbot or his men upon pain 
 of forfeiting ten shillings," — and he won his 
 case. The court decided that this was what 
 we should call a "trade boycott" or unfair 
 competition, and against his liberties as a 
 British subject. Now this great principle 
 has always been law, that not only has a 
 man right to labor and trade, but no man 
 
 59
 
 THE AMERICAN CONSTITUTION 
 
 or set of men can combine against him; and 
 that there shall be no combination in re- 
 straint of trade, no agreement to restrict 
 the output, to fix a price, or to increase a 
 price or to injure a competitor by unfair 
 methods. But this great principle of Eng- 
 lish freedom had been almost forgotten. 
 And, as I told you at the beginning, these 
 subjects we are discussing I select, not only 
 because they are important and funda- 
 mental, but because they seem to be being 
 forgotten to-day. Most of our anti-trust 
 legislation was not really necessary. In- 
 deed, we had the intelligence never to pass 
 any anti-trust statute in Massachusetts. 
 We knew that the law was there, if people 
 would only enforce It. I make bold to say 
 that not a single case has been decided 
 against a trust which might not have been 
 decided equally well on common-law prin- 
 ciples. 
 
 But now let us take the other side of it. 
 We have been talking about combinations 
 of capital in restraint of trade. Now let us 
 take combinations of persons to interfere 
 with a man in his business and regulations 
 of the State to prevent it. These, as I have 
 
 60
 
 CONSTITUTIONAL RIGHTS 
 
 said, were always unlawful in England, but 
 not so on the Continent. The Guilds in 
 England, while in many respects favored 
 by law, were never allowed to control other 
 persons' liberties. In Germany, and partic- 
 ularly in France, on the other hand, they 
 grew so arbitrary and so powerful that they 
 overshadowed the industrial world. It was 
 impossible for a man to get work at a trade 
 before the French Revolution without the 
 consent of some Guild, and these Guilds, 
 mind you, had long ceased to be the unions 
 or combinations of the workmen themselves; 
 they had grown rich and aristocratic, and 
 very often did no labor at all, were not 
 journeymen, but mere combinations of em- 
 ployers. The result was, that they earned 
 the deserved hatred of the people; and 
 Carlyle will tell you that the day of the 
 French Revolution which announced the 
 absolute abolition and destruction of all 
 trade Guilds was welcomed with bonfires 
 and the ringing of bells throughout France. 
 Labor had at last become free there — in 
 England it always has been. 
 
 And so with us the Constitutions of North 
 Dakota and Utah declare that "every 
 
 6i
 
 THE AMERICAN CONSTITUTION 
 
 citizen of this State shall be free to obtain 
 employment wherever possible, and any 
 person or corporation maliciously inter- 
 fering or hindering in any way any citizen 
 from obtaining or enjoying employment 
 already obtained from any other corporation 
 or person is guilty of a misdemeanor." In 
 Montana and Wyoming "The rights of labor 
 shall have just protection through laws cal- 
 culated to secure to the laborer proper re- 
 wards for his services and to promote the 
 industrial welfare of the State." In Louisi- 
 ana "no law shall be passed fixing the price 
 of manual labor." These State Constitu- 
 tions well express the Anglo-Saxon idea. 
 
 62
 
 Ill 
 
 ENGLISH LIBERTY AND THE FREEDOM 
 OF LABOR 
 
 THE general right to liberty includes 
 the right not to be punished by maim- 
 ing or disfigurement; the right to the liberty 
 of one's motions even to the extent that one 
 may freely enter or leave the country; the 
 right not to be banished for any crime. 
 All these rights are simple enough to under- 
 stand and have been established in many 
 centuries. No one seriously questions them 
 any more, though there has been an occa- 
 sional attempt to banish convicted crimi- 
 nals from the States of the Union in which 
 they reside. The Governor of Arkansas 
 is said to have pardoned such a man on 
 condition that he come to Massachusetts. 
 The new Oklahoma Constitution provides, 
 however, that no one shall be banished 
 from the State for any crime or under any 
 legal procedure — except, of course, lawful 
 
 63
 
 ENGLISH LIBERTY 
 
 extradition under the United States Consti- 
 tution. And the great weapon of protection 
 for this part of the personal hberty right is 
 the writ of habeas corpus; which exists to 
 the full extent in no other than English- 
 speaking countries. 
 
 No court and no sovereign, under the 
 Saxon theory, can order a free man to do 
 anything against his will, or even punish 
 him for not doing it by any law that he or 
 his representatives in the Legislature have 
 not consented to. The Norman process of 
 issuing orders from the King or his Chancel- 
 lor resulted in "Prerogative writs," equity 
 jurisdiction and the doctrine of specific per- 
 formance, that is, requiring a man to carry 
 out his contract in terms, not merely to pay 
 money damages for breaking it; in Manda- 
 mus, Injunction, the order of the Crown or 
 the sovereign State to a man to do or refrain 
 from doing some act apprehended — this led 
 to contempt process; that is, the punishment 
 of the parties so ordered for doing or not 
 doing the act complained of — the great 
 point being that English law never speaks 
 in terms of an order from a sovereign to a 
 subject; but only requires a man to pay the 
 
 64
 
 ENGLISH LIBERTY 
 
 penalty of his acts, either by punishment to 
 his person, if a criminal act, or by damages, 
 if in a civil court. Under the accident of 
 our double sovereignty. State and National, 
 and a course of events by which the great 
 bulk of our business has come to be done by 
 corporations chartered by the States, and not 
 by individuals, and the fact that when a 
 suit is between citizens of different States, 
 either may carry it into a Federal court, it 
 has become the usual practice of corpora- 
 tions when complaining or complained of 
 to withdraw the litigation from the local 
 courts to the Federal courts, and so ulti- 
 mately to Washington; and instead of ap- 
 pealing to the local police authorities, or 
 requiring the State officials to maintain the 
 peace of the State, it is found a more con- 
 venient and certain remedy to go into a 
 Federal court for an injunction and then, 
 under this contempt process, secure the 
 imprisonment of anyone who disobeyed it. 
 The abuse of this remedy has led to the 
 demand for jury trial in all cases of con- 
 tempt of an injunction, which seems to be 
 going too far. Nevertheless, the objection 
 is an old one. For instance, under Edward 
 
 65
 
 THE AMERICAN CONSTITUTION 
 
 III, as early as the year 133 1, we find a 
 statute restraining the chancery jurisdiction 
 and forbidding the arrest or conviction of a 
 man or the forfeiture of his property with- 
 out a jury trial in a common-law court. 
 
 The one thing, however, which the in- 
 junction cannot do is to order a man to 
 carry out a contract of personal service. 
 Anglo-Saxon notions of individual freedom 
 prevailed over the Norman Chancellor in 
 this one exception; so that to this day a 
 man who breaks a contract for personal 
 service is -only liable in damages. He can- 
 not be forced by any court to render the 
 service; and in the same way indefinite 
 service for a long period of time is, under 
 our ideas, a contract of slavery; and it may 
 not be enforced in any court. 
 
 An even greater side of the personal lib- 
 erty right, more important at least to-day 
 because more likely to be denied, is the right 
 to labor and to trade; to acquire thereby 
 property, to exercise one's faculties in any 
 lawful way, to increase one's comfort and 
 one's powers by the acquisition of wealth 
 or the exercise of property rights. This 
 right was recognized in the express words 
 66
 
 ENGLISH LIBERTY 
 
 of Magna Charta, where it says that "no 
 free man of England shall be deprived of his 
 freehold or of his liberties or of his free cus- 
 toms"; for this expression, under the law 
 of the time, was understood to mean the 
 right to labor at any trade, to earn one's 
 living in any lawful manner; and the right 
 to be protected in this from any hindrance 
 of others, either physical or by contract in 
 restraint of trade; from combinations of the 
 Guilds, or from monopolies created by the 
 State. All the cities, boroughs and ports 
 of England were to have all their ancient 
 liberties and free customs. A man who 
 labored at a trade for a year and a day was 
 necessarily a free man, in England, even as 
 early as the Norman Conquest, although 
 he had been a slave or a villein before. The 
 Guilds of a trade, while they were recognized 
 and expressly protected in their chartered 
 liberties, were always restrained from cre- 
 ating by-laws in restraint of trade, or which 
 should lead to combinations against others 
 in the same trade, or of other trades, not to 
 buy of or sell to them — what we should call 
 a boycott. 
 
 In 1305 we find the first statute against 
 
 67
 
 THE AMERICAN CONSTITUTION 
 
 conspiracy. In 1360 another statute, of 
 Edward III, for the first time allows work 
 to be done in gross, that is, by contract. 
 Before that, under the statute, all laborers 
 had to be paid by the day. And it declares 
 void all alliances and covins between masons, 
 carpenters, thatchers, etc., or between Guilds, 
 chapters and ordinances. Repeated statutes 
 of this sort were passed, until, in 1436, we 
 find the exact modern words used, "All by- 
 laws in restraint of trade are declared un- 
 lawful and void. No guilds nor corpora- 
 tions shall make unlawful ordinances as to 
 the price of their wares for their own profit 
 and to the common hurt of the people." 
 This sort of statute is repeated many times, 
 and in 1503 we find a new provision that the 
 by-laws of the Guilds restraining suits at 
 law are unlawful; that is to say, if a man is 
 deprived of his rights in a trade union, no 
 by-law of the union may prevent his appeal- 
 ing to the courts. 
 
 The right of a man to get fair wages for 
 his labor was, however, denied for many 
 centuries in England. The principle that 
 a trade combination or an individual has 
 no power to make undue profits, could not 
 68
 
 ENGLISH LIBERTY 
 
 corner the market or buy up any necessary 
 of life and then hold it at an exorbitant 
 price, was very early established, indeed 
 quite as early as the twelfth century, and 
 it had probably been law before that; but 
 for many centuries also the attempt to 
 regulate wages was made in England, and 
 it succeeded in all Continental countries. 
 Wages there were fixed, if not by the em- 
 ployer, at least by some functionary of the 
 State in his interest. This had probably not 
 been the case in England, as to free labor; 
 but early in the fourteenth century the plague 
 of the Black Death nearly depopulated the 
 country, and after this labor was so scarce 
 that in 1349 the first Statute of Laborers 
 was passed, which required everybody to 
 work for the old wages, that is, the wages 
 before the Plague; and in the following year 
 this was fixed by law at one penny a day for 
 common laborers, three pence a day for 
 mowers, two or three pence for carpenters, 
 three or four for masons, one-half a penny 
 for servants, and so on. It is probable that 
 these wages represent something like sev- 
 enty-five cents a day in purchasing power. 
 At that time the Black Prince, the head of 
 
 69
 
 THE AMERICAN CONSTITUTION 
 
 the army, was paid twenty shillings a day; 
 that is to say, about eighty times as much 
 as a skilled laborer — less in proportion than 
 we pay the President, but more than we pay 
 governors or the judges of our Supreme 
 Courts. This notion of fixing wages had 
 now got a firm hold. It is repeated over 
 and over again by statutes in the following 
 two centuries. Able-bodied laborers were 
 compelled to work; and they were com- 
 pelled to work at those prices which were 
 declared lawful. A century later they did 
 give up the attempt to fix the exact price by 
 law, but provided that the wages of artisans 
 and laborers should be fixed twice a year 
 by the justices of the peace. This law in 
 theory existed at least until Elizabeth, and 
 was not expressly repealed until 1869. The 
 fight of the working classes to prevent the 
 fixing of their wages by law was waged for 
 many centuries and had many consequences. 
 One of the most important of these is that 
 in England a strike was, for many centuries, 
 considered an unlawful conspiracy. It is 
 easy to see why; when the rate of wages was 
 fixed by law, and a penalty imposed for pay- 
 ing or demanding more, the combination to 
 
 70
 
 ENGLISH LIBERTY 
 
 obtain more became an unlawful conspiracy; 
 that is, a combination with an unlawful end. 
 This notion of the illegality of strikes only 
 disappeared from England in the first 
 quarter of the nineteenth century. Fort- 
 unately, we never had it in this country; 
 nor did we ever consider in the United States 
 or any of them, at least until very recently, 
 that the wages of labor could be fixed by 
 law. In the Louisiana Constitution and one 
 or two others there is an express provision 
 that the rates of wages never shall be fixed 
 by law. A recent amendment in New York, 
 however, requires that the State or any 
 municipality — town or city, or contractor 
 on public work — shall pay the same wages 
 that are usually paid in the same trade at 
 the same place and time. 
 
 The same fight for free contract was 
 carried on in France and other countries in 
 vain; wages fixed by the State, employment 
 monopolized by the Guilds, existed and con- 
 tinued to exist until wiped out by the French 
 Revolution. We now, therefore, have to 
 add to our liberty right of free trade or labor, 
 the right of free contract: that is the right 
 of a man to demand such wages as he can 
 
 71
 
 THE AMERICAN CONSTITUTION 
 
 get and to refuse to work for them if not 
 satisfied; the right in the same manner to 
 work as many or as few hours as he choose, 
 which is practically the same thing; and the 
 right of free employment, that is, the right 
 not to have any trade made a close corpora- 
 tion. Hours of labor were curiously regu- 
 lated in early times. Under Queen Eliza- 
 beth they were fixed, between March and 
 September, from five a.m. to seven p.m., 
 with two and a half hours " for meal times 
 and drink times and two and one-half hours 
 for sleep"; from September to May the hours 
 were from dawn to sunset — and this is still, 
 or was recently, the law in the State of 
 Georgia. Wages were still to be fixed by 
 a justice of the peace. No one might use 
 any manual art who had not been appren- 
 ticed to the same. Masters were prohibited 
 from discharging servants before their term 
 without reasonable cause or a quarter's 
 warning; and no servant could be hired 
 without a testimonial. I have no time for 
 more of these things; suflfice it to say in 
 brief that the conditions and rights of labor 
 were for several centuries attempted to be 
 regulated by law. As a consequence of 
 
 72
 
 ENGLISH LIBERTY 
 
 this, combinations of workmen to alter 
 wages or conditions of employment were 
 thought illegal. But this latter notion 
 never existed in the United States. And, 
 finally, the whole attempt at regulation by 
 law was given up, and the entire liberties 
 of the laboring classes won back, even in 
 England, early in the nineteenth century. 
 One sometimes w^onders whether our labor 
 unions already wish to return to it. 
 
 Monopoly had much the same course, but 
 was much more quickly got rid of. It was 
 always abhorrent to English notions; and 
 there had been no event like the Black 
 Death, no pretext of necessity, which caused 
 State interference with the right to free trade 
 in this particular. There probably never 
 had been any legalized monopolies in Eng- 
 land until about the reign of Queen Eliz- 
 abeth. Anxious to raise money for her 
 wars, she discovered the principle of grant- 
 ing patents; that is to say, giving licenses 
 to a man or a company to tax a certain trade 
 or business, or to deal in a certain com- 
 modity, or manufacture a certain article, 
 with the implied promise that no one else 
 should be allowed a similar right. In 1606 
 
 73
 
 THE AMERICAN CONSTITUTION 
 
 patents began to be granted for the exclusive 
 sale of articles, even which were not in- 
 ventions, but it was only twenty years later 
 (1623) that the great Statute of Monopolies 
 was passed, prohibiting such monopolies 
 both granted and to be granted, giving 
 remedy in double or treble damages to any- 
 one injured — ^just as we to-day under the 
 anti-trust acts — making exceptions only of 
 the charters to trade Guilds, tavern licenses 
 and patents for inventions and copyrights. 
 This, with the exception of the double 
 damage clause, was probably the common 
 law; but the beauty of the statute was that 
 it prohibited the King from dispensing with 
 the common law by granting such licenses. 
 Monopolies in England had a very brief 
 sway, therefore, under the law; and it is 
 doubtless one of the constitutional rights 
 of an Englishman, and hence of an Ameri- 
 can, to be protected from them. I need not 
 point out that such was not the case in Con- 
 tinental, countries, where monopolies have 
 always been part of the very fabric of so- 
 ciety. State monopolies, the most dangerous 
 kind, exist in all European countries to-day. 
 In Austria, Italy, and, I think, France, the 
 
 74
 
 ENGLISH LIBERTY 
 
 trade in salt and the trade in tobacco is a 
 State monopoly; and in nearly all countries 
 individuals or bodies of men were given 
 exclusive charters, either by the State, or by 
 the town or city, to exercise their industry. 
 Such is the case in all South American 
 countries — you can do almost nothing with- 
 out a State license — a " concession." In this 
 country and in England, however, monopo- 
 lies created by the State or Nation are just 
 as unlawful as any other kind. A man 
 has the constitutional right to exercise any 
 trade, go into any business, and not to be 
 competed with by the State, or have other 
 individuals or corporations favored by spe- 
 cial license or privilege at his expense. Ab- 
 stractly stated, this means that individu- 
 alism and not socialism is the principle on 
 which our government is based. Socialism 
 of any kind has never been recognized or 
 permitted under English or American law. 
 The moment any statute or any combina- 
 tion was perceived to embody a socialistic 
 principle, it was held unconstitutional, or 
 unlawful, as the case might be. This is so 
 fundamental that there are, even in all our 
 forty-six States, only three cases in which, 
 
 75
 
 THE AMERICAN CONSTITUTION 
 
 so far as I know, the principle of socialism 
 is discussed abstractly. Some ten years 
 ago a Texas judge refused to naturalize an 
 immigrant who was a professed socialist, on 
 the express ground that the Constitution 
 of the United States required a republican 
 form of government; and that this is not con- 
 sistent with socialism. There is no express 
 provision on socialism, using the word, in 
 the Constitution of any State. The new 
 Oklahoma Constitution declares that the 
 right of the State to engage in any occupa- 
 tion or business for public purposes shall 
 not be denied or prohibited, except that it 
 shall not engage in agriculture. This, in- 
 deed, is the declaration of a socialistic prin- 
 ciple, at least in possibility, which may have 
 caused the President to question whether it is 
 compatible with a republican form of gov- 
 ernment. While, on the other hand, the 
 new States of Washington and Utah ex- 
 pressly say that the object of government is 
 to protect and maintain individual rights. 
 In the older States the provisions concern- 
 ing liberty and property were doubtless 
 considered sufficient to cover this. The 
 State of South Carolina established a mo- 
 76
 
 ENGLISH LIBERTY 
 
 nopoly in the liquor-selling business and at- 
 tempted to carry on that trade itself. This, 
 of course, was state socialism applied to the 
 selling of intoxicating liquors. The United 
 States attempted to impose internal revenue 
 taxes on the State, as it would upon any other 
 manufacturer or dealer in liquors. The 
 State resisted payment on the ground that 
 it was a sovereign State, hence could not be 
 taxed, and the case went to the Supreme 
 Court. There was a great deal of argu- 
 ment on the question whether a State, as 
 such, had the right to engage in any gainful 
 business, but the case was decided upon 
 other grounds. And in Massachusetts and 
 several other States the carrying on by the 
 State or by cities or towns of gainful trades 
 or avocations necessarily competing with 
 the industry of private individuals has been 
 declared unlawful and the laws permitting 
 such, unconstitutional. You will remember 
 the case in this State was that of Municipal 
 Coal Yards, that is, having the city engage 
 in the coal business, but there have been in 
 other States several other examples. So we 
 conclude that the right to trade is not only 
 protected, but it is unlimited. There can
 
 THE AMERICAN CONSTITUTION 
 
 be no combination made against it, nor any 
 privilege granted, even by the Government, 
 which shall interfere with it; and the right 
 to trade, as well as the right to labor, 
 necessarily involves the right to make con- 
 tracts concerning the same — which we call 
 the right to freedom of contract. 
 
 There is another cardinal liberty right 
 which bulks very largely in the popular 
 mind to-day, but cannot be traced, at least 
 as now understood, to any very early ex- 
 pression in England — that is the right to 
 equality. The notion of equality was, as 
 you know, very strong at the time of our 
 Revolution, and still more strong in the 
 French Revolution; and Tocqueville and 
 others have often pointed out that in an ex- 
 treme democracy it is apt to be valued more 
 than even the right to liberty itself. In 
 other words, democracies, and legislatures 
 representing them, will sacrifice individual 
 rights, and impose very tyrannous laws, 
 in the aim of securing a fancied equality. 
 But the very word equality appears for 
 the first time in the Declaration of Inde- 
 pendence, which only says that "All men 
 are created equal." Equality before the 
 
 78
 
 ENGLISH LIBERTY 
 
 law — not equality of position and condition 
 — was, indeed, an English principle almost 
 as old as any that we have. In the earliest 
 times of which we have any glimpse, in the 
 times written about by Tacitus, the Teu- 
 tonic people were divided into three classes 
 — nobles, freemen and laborers attached to 
 the soil — but they were probably always 
 treated equally before the law, except, in- 
 deed, that, as I have told you, the fine paid 
 for the murder of a man varied according 
 to which of these three classes he belonged 
 to, and in the same manner when they tried 
 people by their oaths (compurgation, as it 
 was called) the oath or testimony of a noble 
 was worth ten times as much as that of a 
 simple freeman, and so on: but even this 
 inequality disappeared very soon after the 
 Conquest, so that as early as the reign of 
 Henry II the express principle is laid down 
 in the most forcible manner in one of 
 his great charters, that all Englishmen are 
 free and shall be treated equal before the 
 law. Another right of equality results from 
 this very right to labor — to acquire property 
 unmolested — that we have been discussing; 
 that is what the President so well calls 
 
 79
 
 THE AMERICAN CONSTITUTION 
 
 "Equality of opportunity"; the equal right 
 of any man to engage in any trade or busi- 
 ness with as good a chance as anybody else 
 and be protected from any confederation, 
 any combination in restraint of trade, any 
 trust, or any special privilege granted by the 
 State or by the Nation. On this principle, 
 also, all public service must be open to all 
 men equally without distinction of rank or 
 station, and all schools or other public in- 
 stitutions be open to everybody in the same 
 way, or at least equal privileges provided. 
 
 Finally we come to the right of property. 
 This is almost as old as the right to personal 
 liberty. In fact, it may almost be said to 
 result from it, as it certainly results from 
 the right to labor. There is no recorded 
 history of a time when the Teutonic (later 
 the Anglo-Saxon) people did not recognize 
 this right to property quite as firmly as we 
 do to-day. The only difference was, that 
 in very early times some of the land was 
 held in common; not all, but some. Property 
 in land seems to have preceded property 
 in what we call "Personal property"; this 
 merely for the reason that at first there was 
 very little of the latter. A man always 
 
 80
 
 ENGLISH LIBERTY 
 
 owned his spear, his clothing and personal 
 belongings. His house or hut, of course, 
 was on his land. Other than this, the 
 earliest personal property was cattle and 
 domestic animals; and there is no record of 
 a time when these might not be owned in 
 private ownership. Our word "chattels" 
 is doubtless a corruption of the other word 
 cattle, for this was the earliest subject of 
 property. There are express statutes, how- 
 ever, recognizing personal property long 
 before Magna Charta; and that great docu- 
 ment recognizes the right of property, both 
 real and personal, in many clauses. It 
 was not necessary to define the right to 
 property in abstract terms. But even this 
 is done in most of our modern constitutional 
 documents, notably the Virginia Bill of 
 Rights of 1776, and in the Federal and State 
 Constitutions. 
 
 The right to property needs very little defi- 
 nition. It is, of course, inconsistent with 
 any scheme of socialism or of communism. 
 These, by the way, are not the same 
 thing, though often confounded. Com- 
 munism merely means that the institution 
 of private property shall not be recognized, 
 
 81
 
 THE AMERICAN CONSTITUTION 
 
 but everything shall be owned by the State. 
 Socialism goes much farther than this, and 
 says that the State shall also control the 
 actions, or the means of livelihood, of the 
 individual. In other words, communism is 
 merely aimed at the property right; social- 
 ism is aimed at the broader liberty right. 
 
 The individual, in England and America, 
 therefore, has an absolute right to property, 
 either the profits of his labor (the only kind 
 recognized in the Oklahoma Constitution), 
 or to property lawfully acquired in any 
 other manner (in the Constitutions of all 
 other States and of the Nation). And hav- 
 ing the right to property, he has the right 
 to make any contract, with whomsoever he 
 choose, concerning it; either for the use of 
 the same, or in order to acquire new prop- 
 erty. This, again, we call the right to 
 freedom of contract; but while the right 
 itself is clear enough, the methods in which 
 it has been enforced and the methods in 
 which it has been interfered with deserve 
 some study. 
 
 The three great principles in the English 
 Constitution which concern property in its 
 relation to the government are, first, that 
 
 82
 
 ENGLISH LIBERTY 
 
 Englishmen cannot be taxed without their 
 consent as expressed in their legislature. In 
 other words, the King can impose no tax 
 except under a law passed by Parliament. 
 The second, that the object of all levies, the 
 end for which all moneys are raised by law, 
 must be the general good of the people, that 
 is, the good of the people, not of any one 
 person, even the King, nor of any particular 
 class, such as the nobles or the merchants. 
 The third, also expressed in Magna Charta, 
 is that no man's property shall be taken 
 away or damaged, even for public uses, for 
 the use of the State, without full compensa- 
 tion; and we have added to this principle 
 that the compensation must be paid before 
 the taking, and the amount determined by a 
 jury. The first two principles were so dis- 
 tasteful to the Norman Kings that, while 
 clear in the charter of John, they were care- 
 fully dropped out a few years later from 
 the charter of Henry III, and it took a cen- 
 tury or so to get them back — in the Confir- 
 mation of Charters of Edward I. This prin- 
 ciple, that money can be only taken from a 
 manunderanylawbytheStateorbyanycrea- 
 ture of the State, with his own consent as ex- 
 
 83
 
 THE AMERICAN CONSTITUTION 
 
 pressed by a legislative body in which he is 
 represented; and the other principle, that 
 all the revenues of the government must be 
 collected for the good of everybody and not 
 for any particular class, have been of im- 
 mense importance in our history. They, 
 in large part, brought on both the English 
 and the American Revolution, and have by 
 no means ceased to be important to-day. 
 And our Constitution goes a step beyond 
 the English in that it effectually denies to 
 the Central Government any direct taxation 
 at all. 
 
 The last of our natural rights is the right 
 of conscience; the right to the free exercise 
 of one's own religion, the right not to be 
 compelled to adopt any religion, or to pay 
 taxes for any church; and the right not to be 
 deprived of any privilege or any office on 
 account of one's religious sentiments. I 
 need say no more of this. As you know, 
 it is the very principle which brought about 
 the settlement of our country; and although, 
 at first, our Puritan ancestors endeavored to 
 enforce their own religion or their own sec- 
 tarian belief on others, that effort was soon 
 given up, and the denial of any such attempt 
 
 84
 
 ENGLISH LIBERTY 
 
 forms one of the corner-stones of the Decla- 
 ration of Independence and the Federal 
 Constitution. This last right, you probably 
 know, has never even yet been declared a 
 constitutional right in England, though the 
 political tendency for the last two centuries 
 has been towards general religious freedom. 
 The established church, however, still re- 
 mains. 
 
 Now, in closing our discussion of these 
 cardinal rights, the right to law, personal 
 liberty, trade and labor, equality, property, 
 religion, and, we might add, local self-gov- 
 ernment — I must accentuate the fact that 
 one great principle is common to all of them. 
 Whereas other rights given to or retained 
 by the people under our system are matters 
 which may be altered at the will of the ma- 
 jority, matters which cannot be enforced 
 to their full extent by one individual — 
 certainly not by one individual as against 
 the Government — everyone of these cardinal 
 rights can be enforced just as much by the 
 individual against a majority or even against 
 the Government as against any other one 
 fellow-citizen. Under our theory nothing 
 can change or take away from an English 
 
 85
 
 THE AMERICAN CONSTITUTION 
 
 freeman any of these cardinal rights. Vir- 
 ginia and other State Constitutions say that 
 these rights are inahenable and that govern- 
 ment itself is instituted to secure them. 
 They cannot be supposed to be surrendered 
 by the people when they came into this or 
 any government, because no equivalent can 
 be given for them. 
 
 But, besides these natural rights, there are 
 other constitutional rights of English free- 
 men, many of which are quite as old, which 
 only differ from the natural rights in that 
 they are rather political, military, or legal, 
 than essential attributes of human liberty. 
 I have no desire to tire you with a full cata- 
 logue; but some of them are too important 
 to omit. First is freedom of speech and 
 freedom of the press, which I need not dwell 
 upon; and (perhaps as a consequence of this) 
 the great political right of the people to as- 
 semble and consult together; and to petition 
 the Government for redress of grievances. 
 Now this is a right of immense importance; 
 and this also does not exist in Continental 
 countries. Only last week in this very hall 
 Abbe Klein was complaining that it was 
 almost impossible for his party to make 
 
 86
 
 ENGLISH LIBERTY 
 
 effective opposition to the radicals because 
 this right did not exist in France; and we 
 remember the recent executions of thousands 
 of Russian subjects for presuming to exer- 
 cise this right. And even in our own coun- 
 try the Chief Magistrate has recently quali- 
 fied with the term of conspiracy an alleged 
 combination of citizens to oppose or pre- 
 vent the nomination of a certain man to 
 succeed him. A conspiracy is a criminal 
 or unlawful combination. A combination 
 of English or American citizens to nominate 
 a certain man for office — or even to oppose 
 the nomination of a certain man — is not a 
 conspiracy, but the exercise of a sacred 
 political right. Cromwell, in his later des- 
 potic years, termed it a conspiracy; so Napo- 
 leon III, who dispersed such assemblies at 
 the point of the bayonet, and the Czar, who 
 breaks up such combinations by imprison- 
 ment or execution. But it is one of our 
 dearest liberties. 
 
 The right to bear arms is another cardinal 
 right of English freemen, dating back to the 
 days when every man might execute the 
 law for himself, reaffirmed in later days as 
 against a tyrannical government, while to 
 
 87
 
 THE AMERICAN CONSTITUTION 
 
 the Government, the employment of mer- 
 cenaries — later, standing armies — is always 
 forbidden. Standing armies were always 
 intolerable to the English people. Even 
 now, in England, the maintenance of the 
 British army depends on the annual vote 
 of the House of Commons; so with us it 
 must be voted once in two years, or by every 
 Congress. Yet we have recently heard from 
 one of our generals that our imperial career 
 may make conscription necessary — a thing 
 never yet tolerated in England. Several 
 States have Constitutions forbidding the em- 
 ployment of private companies of guards 
 or the importation of " Pinkerton men," so- 
 called, in times of strike or trouble. This is 
 said to have been one of the objections of 
 the President to the Oklahoma Constitution; 
 but it exists in such conservative States as 
 Kentucky. So, the early statute books in 
 England are full of laws against "private re- 
 tainers." 
 
 Of trial by jury, I need say no word. It 
 comes under the right to law, but is sepa- 
 rately and expressly mentioned in Magna 
 Charta. Congress is at present withhold- 
 ing it from ten millions of our people in the 
 
 88
 
 ENGLISH LIBERTY 
 
 East. — The right to serve on juries is of 
 equal importance. The negroes allege that 
 they are being denied it in the South. — 
 The right to habeas corpus comes under the 
 right to liberty; that also is being withheld 
 in the Philippine Islands. — Since Magna 
 Charta, no man can be tried for crime un- 
 less a grand jury of twenty-three men find 
 probable cause. This is done away with 
 in all our insular possessions. — Under 
 Charles I our ancestors established that 
 treason should consist only of levying war 
 against the state or adhering to its enemies 
 and giving them aid and comfort, and be 
 evidenced by some overt act to which there 
 are two witnesses. It was under this right 
 that even Aaron Burr was acquitted by his 
 political enemy, John Marshall. Yet it 
 has recently been asserted that the mailing 
 of political arguments to American citizens 
 might be such an overt act; and freedom of 
 the press is forbidden in the Philippines. — 
 The English Bill of Rights forbids pardon- 
 ing a crime before trial. Newspapers have 
 said that it was recently promised by our 
 Attorney-General to the officials of a certain 
 railroad. — The English people fought five cen- 
 
 89
 
 THE AMERICAN CONSTITUTION 
 
 turies to make the judiciary independent of 
 the Crown, until they finally established that 
 all judges should hold office during good 
 behavior, for fixed salaries not alterable by 
 the King, and removable only on joint address 
 of the legislature. But a democratic Sen- 
 ator has recently introduced a bill to make 
 our judges removable by the President; and 
 the members of the Interstate Commerce 
 Commission, with more power than most 
 judges, are removable at the will of the Presi- 
 dent. — I have mentioned but a few of these 
 political rights, with the briefest statement 
 of their reason; but I hope enough to show 
 their importance. And every one of these 
 we have shown a recent tendency to forget. 
 Now are there any other natural rights, 
 besides these cardinal rights we are discuss- 
 ing, which every individual must have ? 
 Kentucky and Wyoming declare that abso- 
 lute arbitrary power over the lives, liberty 
 and property of freemen exists nowhere in 
 a republic, not even in the largest majority, 
 and the Constitutions of most States make 
 the famous statement which, after having ap- 
 peared in the Constitutions of Massachusetts, 
 New Hampshire, Virginia and North Caro- 
 
 90
 
 ENGLISH LIBERTY 
 
 lina, was adopted in the Federal Constitu- 
 tion in the Ninth Amendment, as the people 
 at the time insisted, or the Constitution as a 
 whole would not have been adopted: "This 
 enumeration of rights shall not be construed 
 to impair or deny others retained by the 
 people." Even if the word liberty were not 
 large enough to cover almost any possible 
 infringement, it would probably be held, 
 should our people or the people of any State 
 have to face a course of oppression by any 
 form of government, that these words were 
 broad enough to cover any right not ex- 
 pressly and in terms taken from the people 
 and given in the Constitution itself to the 
 Government it created. For our Govern- 
 ment exists only in and by the Constitution; 
 if the Constitution falls, our Government 
 itself falls with it. So Hooker in his 
 ''Ecclesiastical Polity" — ''What power the 
 King hath, he hath it but by law." 
 
 91
 
 IV 
 
 GROWTH OF THESE RIGHTS; THEIR 
 INFRINGEMENT BY KINGS AND THEIR 
 REESTABLISHMENT BY THE PEOPLE 
 
 WE have now briefly sketched the more 
 important of the constitutional rights 
 which appertain to the people at large, as 
 distinct from those that merely have to do 
 with the frame of government. Before 
 coming to their adoption in our American 
 Constitution, it would be well to consider 
 what attacks were made upon them by the 
 King or by other branches of the government 
 in the years preceding that final attack by 
 George III, which caused the thirteen 
 colonies to revolt. Each attack led to a 
 reaffirmation — always in a stronger and 
 clearer form — so that, in pursuing this in- 
 quiry, we shall find the exact shape in which 
 our ancestors understood them in 1787, when 
 they drew up the Federal Constitution, or in 
 
 92
 
 GROWTH AND INFRINGEMENT OF RIGHTS 
 
 1780, when they drew up the constitutions 
 of Virginia and Massachusetts. 
 
 It will be important in the first instance 
 to notice by which arm of government the 
 attack was made and by what method of 
 approach. From the Norman Conquest 
 until the accession of Queen Victoria attacks 
 upon the British Constitution were always 
 made by the King or by the Executive, by 
 John, Henry VIII, James I, Charles I, by 
 Oliver Cromwell, in his later days, — never by 
 the Parliament, who were the representatives 
 of the people; except, perhaps, when the 
 Long Parliament lost its head under the later 
 years of Charles I, and in the earlier years 
 of the Commonwealth, before Cromwell 
 did away with representative government 
 at the point of the sword. The judicial 
 branch, not in fact being a coordinate 
 branch in England but merely the creature 
 of the other two, and being possessed of no 
 power to set aside laws, naturally made no 
 such attack. Their only action, on the 
 contrary, was to stand up for the Consti- 
 tution against the King; this they steadfastly 
 and bravely did for many centuries. 
 
 The method of approach to undermine 
 
 93
 
 THE AMERICAN CONSTITUTION 
 
 the Constitution was mainly the King's inter- 
 ference with other than executive duties, 
 that is to say, with the Parhament or with 
 the courts — trying to make the laws, or 
 trying to judge them. There being no 
 precise doctrine of the separation of powers 
 in the English Constitution, it was easy for 
 him to do this; and it was the very experi- 
 ence of this for many centuries which gave 
 our fathers the wisdom to base our own 
 Constitution on this cardinal principle. 
 
 The first attack, which began almost with 
 William the Conqueror, was, of course, the 
 attempt I have discussed so often of the 
 Norman kings to persuade the people that 
 they made the law and not the people them- 
 selves. This was so continuous until down 
 to the time of Henry VI that I need give no 
 particular instance. *' Even William theo- 
 retically continued to govern as a constitu- 
 tional king, the lawful successor of Edward, 
 and in that character obliged to respect the 
 laws and customs of the kingdom." But 
 practically he governed in defiance of every- 
 thing but his own wishes. ''The Govern- 
 ment was centralized," says Taswell-Lang- 
 mead, ''Local self-government was for a 
 
 94
 
 GROWTH AND INFRINGEMENT OF RIGHTS 
 
 time depressed." Nevertheless, he was 
 careful to observe the forms of a King of 
 the EngHsh, and in the fourth year of his 
 reign ** renewed the laws of Edward the 
 Confessor — with certain additions made by 
 himself for the advantage of the people of 
 England." He held three times a year, at 
 the accustomed times and places, the ancient 
 national assembly. 
 
 That the people were re-asserting them- 
 selves is, perhaps, best shown in that Henry I 
 on his accession, only thirty-four years after 
 the Conquest, found it necessary to issue a 
 charter of liberties; and this was renewed 
 by Stephen and by Henry H, though neither 
 King observed it when firmly seated on the 
 throne. Under John, it served in the hands 
 of Stephen Langton as the text upon which 
 the barons founded their claim for a restora- 
 tion of the ancient liberties of the nation. 
 Our authorities give two great constitutional 
 results of Henry's reign, both showing the 
 restoration of popular rights; first, the main- 
 tenance of the local supremacy of the State 
 over the Church of Rome; second, the 
 restoration of Saxon law liberties by the 
 abolition of the Norman method of trial by 
 
 95
 
 THE AMERICAN CONSTITUTION 
 
 battle, and the restoration, in an improved 
 form, of both the grand jury, as the only 
 body competent lawfully to charge a man 
 with crime, and the petit jury, by which 
 alone the crime was to be tried. Star 
 Chambers, Courts of Chancery, Attainders, 
 Informations, were all devices contrived 
 by the successive kings to get rid of the two 
 juries. Guizot, the French historian, tells 
 us "that juries alone kept alive the germ 
 of free institutions at the time when the 
 predominant influence of the king in the 
 judicial order produced this centralization." 
 The kings, however, at that time, rather 
 devoted their energies to the invention of 
 ways to raise money by excessive taxation 
 without respecting the ancient constitutional 
 principle that taxes could only be imposed 
 by the common consent of the realm and 
 for the benefit of the people as a whole. 
 This, curiously enough, was the first, as it 
 was the last, effort of the English kings to 
 undermine the liberties of the people. Tax- 
 ation without legislative consent was the 
 great object of the Norman kings, just as 
 taxation without representation was the 
 purpose of the last English king who seri- 
 
 96
 
 DEVELOPMENT OF THESE RIGHTS 
 
 ously endeavored to do away with con- 
 stitutional principles. 
 
 When we come to John, the legal chron- 
 iclers complain that he set at defiance all 
 laws. The people were compelled to make 
 a stand, not so much for constitutional 
 government as for personal liberty. Tyr- 
 anny always provokes democracy, and the 
 assembly at St. Albans called together to 
 oppose John's pretensions, is the first his- 
 torical instance of the summons of repre- 
 sentatives of the common people to a na- 
 tional council of England. One of the 
 things they complained of was the King's 
 Court, which, during the Norman reigns, 
 had drawn to itself the whole central ad- 
 ministration of justice; not only did it hear 
 all cases on appeal, but, by virtue of special 
 writs or as a special favor, the King would 
 call up cases from the local courts to be 
 heard in his own courts according to such 
 new methods as his advisers might invent. 
 This court followed the person of the King 
 wherever he went. It resulted in a per- 
 fect centralization of justice, but probably 
 little greater in civil causes than would be 
 the case if all our corporations did business 
 
 97
 
 THE AMERICAN CONSTITUTION 
 
 under a Federal charter. Hannis Taylor 
 says: *'As soon as the principle was firmly 
 established that the king was the fountain 
 of justice and that all courts were the king's 
 courts, there was nothing to prevent the 
 king from invading any jurisdiction and 
 withdrawing from it any cause whatsoever." 
 And that same dispute we have now once 
 more, as a consequence of the Railroad 
 Rate Regulation Act, and the trust laws, 
 between our States and the Federal power. 
 The result of all this, in England, was two 
 articles in Magna Charta: *' Common pleas 
 shall not follow the King's Court, but be 
 held in some certain place"; and again no 
 royal writ was in future to be issued so as to 
 cause a free man to lose the right to trial 
 in his local court. Another article is not- 
 able, for it says that "justices shall only be 
 appointed of such as know the law and mean 
 duly to observe it." And, finally, the liber- 
 ties of the charter were extended to **all 
 men in our kingdom" without distinction 
 of rank or station. 
 
 Immediately after being compelled to 
 grant the Great Charter, John applied for 
 aid to the Pope, who declared it void; but 
 
 98
 
 DEVELOPMENT OF THESE RIGHTS 
 
 John soon died, and Henry III confirmed it. 
 But he omitted from his re-issue of the 
 Charter the great clauses forbidding tax- 
 ation without the consent of the people as 
 expressed in Parhament, and also the quali- 
 fication that judges should be learned in 
 the law; and this was the next notable at- 
 tack on the people's liberties. The lost 
 clauses were only restored in the Confirma- 
 tion of Charters granted by Edward I in 
 1 297 . Magna Charta was confirmed thirty- 
 seven times by seven successive kings, end- 
 ing with Henry VI, not to mention the great 
 confirmation forced upon Charles I in the 
 Petition of Rights and again granted by 
 William of Orange in the Bill of Rights. 
 
 The third attack of the Norman kings 
 was upon the judiciary. Henry II insisted 
 on sitting in court and dispensing justice; 
 and this was done by all the kings down to 
 Edward II. Edward IV, we are told, sat 
 in the King's Bench for three consecutive 
 days in order to see how his laws were exe- 
 cuted, but it is not said that he interfered 
 in the proceedings. Finally, when James I 
 sat personally in court and wished to in- 
 terfere, he was told by the judges that he 
 
 99
 
 THE AMERICAN CONSTITUTION 
 
 could not deliver an opinion. This ended 
 the interference of the Executive until the 
 final great battle between the King and the 
 Chief Justice in 1615, of which later. 
 
 During this earlier time the people were 
 mainly occupied in winning back their local 
 courts, their right to lawmaking, and the 
 institution of the grand and petit jury. 
 Even when the king allowed his judges to 
 go on circuit, they were employed as his 
 agents for squeezing money out of the peo- 
 ple, of which, under Henry III, the baron- 
 age complained. When, too, the jury was 
 finally established, the king got back at the 
 people by inventing a method of attaint, 
 that is, punishing the jury for a false verdict. 
 This was frequently employed by the Tudor 
 and Stuart kings. One of the most inter- 
 esting cases happened as late as Charles II. 
 William Penn, the famous Quaker, was 
 prosecuted for having preached to a large 
 assembly in Grace Church Street. The jury 
 acquitted him and were accordingly fined 
 twenty-six pounds apiece, quite as much as 
 a thousand dollars of our money, and the 
 foreman was committed to prison for re- 
 fusing to pay. He sued out his writ of 
 100
 
 DEVELOPMENT OF THESE RIGHTS 
 
 habeas corpus. The defense was that he 
 had been punished for finding a verdict 
 against the evidence and the direction of the 
 court. Chief Justice Vaughan held the 
 ground to be insufficient and discharged the 
 prisoner — so this was the end of the attempt 
 of the King to interfere with juries, after 
 he had failed to Hmit the people to his own 
 courts. 
 
 His next attempt I anticipated in an 
 earlier lecture. The King's great officer, 
 the Chancellor, unconstitutionally assumed 
 jurisdiction in common-law cases. Men 
 were arbitrarily imprisoned on injunction 
 process without indictment, and their land 
 seized into the King's hands. A series of 
 statutes were passed restraining this illegal 
 invasion upon the rights of property and 
 personal liberty. The statutes proving in- 
 sufficient, they filed repeated petitions to 
 the King, who returned an unsatisfactory 
 answer, and it was not until 1352 that they 
 obtained the enactment of a statute which, 
 expounding the words of Magna Charta, 
 explicitly declares that "whereas it states 
 that none should be imprisoned unless by 
 the law of the land, it is now established that 
 
 lOI
 
 THE AMERICAN CONSTITUTION 
 
 from henceforth none shall be taken by 
 petition or suggestion made to the King 
 unless by indictment of good and lawful 
 people of the neighborhood." But in 1389 
 they had again to petition Richard II that 
 the Chancellor should make no ordinance 
 against the common law, to which the King 
 returned the unsatisfactory answer, "Let it 
 be done as has been the custom, provided 
 the royal prerogative he saved." Under 
 Richard II, a few years later, the barons 
 protested that they would never suffer the 
 kingdom to be governed by the Roman law, 
 and the judges prohibited it from being any 
 longer cited in the common-law tribunals. 
 Yet under Henry VIII it is said one-third 
 of England was deprived of the common 
 law. The abuse of the Chancery, particu- 
 larly on its criminal side, went on; the Court 
 of Star Chamber continued until abolished 
 by Parliament under Charles I. It was then 
 identical with the Privy Council; so that 
 the same body of men exercised executive 
 and judicial functions. This court was 
 held competent to pronounce any sentence 
 short of death; and the fines were frequently 
 of enormous amounts, and in many cases 
 102
 
 DEVELOPMENT OF THESE RIGHTS 
 
 proved ruinous to the sufferers. So, by one 
 path after another, but mainly by attacks 
 upon the judiciary, the Tudor and the 
 Stuart kings attempted to make the royal 
 will the only law, until the last of the Stuart 
 kings overthrew his dynasty in that attempt. 
 Richard II worked mainly through a 
 corrupt bench of judges and a packed House 
 of Commons; his favorite method was to 
 secure the opinion of the judges beforehand 
 on a question of law in his favor, then seize 
 the most obnoxious members of the opposi- 
 tion and send them to those judges for trial. 
 This also resulted in the loss of his kingdom 
 a few years later. He finally persuaded 
 the Commons practically to abdicate their 
 powers in favor of a board of eighteen com- 
 missioners. This scheme worked perfectly, 
 and caused no Parliament to be called for 
 many years. This committee of eighteen 
 issued ordinances at the King's will, granted 
 taxes, decreed treason against all who dis- 
 obeyed them, and authorized the King to 
 dispense with statutes at pleasure. The 
 people stood this for thirteen years and 
 then he was deposed by that ParHament 
 he had failed to call together. 
 103
 
 THE AMERICAN CONSTITUTION 
 
 Under the five kings of York and Lan- 
 caster the nation was busy with civil or 
 foreign wars. In times of war the Consti- 
 tution is silent. In militant civilization it 
 has no part. Consequently we find little 
 growth at this time. In nearly a hundred 
 years there are but two things to note. The 
 people succeeded in re-establishing the in- 
 valuable right of members of Parliament not 
 to be questioned or punished for their speech 
 in any other place. Freedom of speech, at 
 least in Parliament, was thus established. 
 On the other hand, the first disfranchising 
 statute ever passed in England, putting a 
 property qualification on the right of suff^rage 
 so that nobody could vote who had not land 
 to the value of forty shillings a year, was 
 passed under Henry VI. Up to that time 
 they had manhood suffrage in England. 
 This change practically confined the govern- 
 ment of the country to the larger land own- 
 ers, for forty shillings a year then was quite 
 forty pounds of our money, and the people 
 have never quite got back all their early 
 freedom in this particular, even at the pres- 
 ent day. 
 
 The Tudor period is an age of great ma- 
 104
 
 DEVELOPMENT OF THESE RIGHTS 
 
 terial prosperity owing to the discovery of 
 America and the passage to the East Indies. 
 "Intent upon the acquisition of private 
 gain," says Taswell-Langmead, "merchants 
 were, for the most part, satisfied to leave 
 questions of government to others," much 
 as has been the case here in the last ten 
 years. On the Continent, the introduction 
 of standing armies enabled sovereigns to 
 do away with national assemblies. The free 
 constitutions of Castile and Aragon were 
 successfully overthrown. The States Gen- 
 eral of France, after languishing for a time, 
 ceased altogether in 1614, and were only 
 resuscitated for their final meeting, one 
 hundred and seventy-five years later, on the 
 eve of the great Revolution. The main 
 reason that Parliamentary institutions did 
 not pass away also in England was her 
 insular position, which, rendering her se- 
 cure against a foreign invasion, made it un- 
 necessary to employ regular troops. Ma- 
 caulay tells us that even as late as Henry 
 VIII there were only two hundred paid 
 soldiers in England; and the great historian. 
 Freeman, tells us that the personal char- 
 acter of Henry VIII had something to do 
 105
 
 THE AMERICAN CONSTITUTION 
 
 with this. Tyrant as he was, he was yet 
 animated by a scrupulous regard for the 
 letter of the law. While his fellow-tyrants 
 abroad were everywhere overthrowing free 
 institutions, Henry showed them the deepest 
 outward respect. He sheltered himself al- 
 ways under the letter of the law; otherwise 
 his conscience seemed to be uneasy. A 
 subservient Parliament made it possible to 
 do this and still obtain all that he wanted. 
 When Henry had cut off Ann Boleyn's head 
 on one day and married Jane Seymour 
 the next morning, this Parliament carefully 
 listened to a speech from Lord Chancellor 
 Audley, who assured them that the King 
 did not do it "in any carnal concupiscence" 
 and Parliament immediately proceeded to 
 pass an act declaring that it was all done "of 
 the King's most excellent goodness." Dr. 
 Freeman says we had got into a state of 
 things which our fathers called "unlaw," 
 when judges were ready to declare anything 
 to be the law, juries ready to find any verdict, 
 and bishops ready to declare anything true 
 and orthodox at the will of the mere ca- 
 pricious despot on the throne. Therefore, 
 there is little formal attack on the liberties of 
 1 06
 
 DEVELOPMENT OF THESE RIGHTS 
 
 the people under Henry Vlll which appears 
 in the statute book. All he found it neces- 
 sary to do was to control Parliament, and 
 this he did by interference with elections, 
 thus infringing on at least one constitutional 
 principle, namely, that all elections shall 
 be free. Although the power of the Crown 
 increased until it acquired dangerous pro- 
 portions, the want of a standing army acted 
 as a perpetual restraint which, says Ma- 
 cauley, ''while it did not protect the indi- 
 vidual, secured the nation against general 
 oppression." Under Henry VH, however, 
 the criminal jurisdiction of the Court of 
 Star Chamber had been revived and the 
 persecution of the Puritans roused up a 
 spirit of opposition to the Crown so that the 
 struggle for religious freedom led to a fight 
 being waged for political freedom, while 
 Henry VH's effort to tax the people had 
 provoked armed opposition — "taxation be- 
 ing the one point which the masses of the 
 people seem to have considered worth fight- 
 ing about." 
 
 The main attack, therefore, under Henry 
 Vni, is the subjugation of Parliament; not 
 so much the confusing of the legislative with 
 107
 
 THE AMERICAN CONSTITUTION 
 
 the executive, for Henry was nearly always 
 careful to act under the forms of law, but 
 the interference with elections.and the pack- 
 ing of Parliament in favor of the King and 
 his policies. This came to a head under 
 Cardinal Wolsey in 1523. Parliament was 
 asked to impose the then huge tax of 800,000 
 pounds, and being reluctant. Cardinal Wol- 
 sey himself, with pomp and retinue, with all 
 his followers, his maces, his pillars, his pole 
 axes, his cross, his hat, and the great seal, 
 too, marched down personally to Parliament 
 and was admitted. The Commons received 
 his harangue in silence, even when Wolsey 
 demanded an answer; but at last the Speaker 
 falling on his knees with much reverence, 
 excused the silence of the House, "abashed," 
 as he said, *'at the sight of so noble a person- 
 age"; but he then proceeded to show the 
 Cardinal that his coming thither was 
 "neither expedient nor agreeable to the 
 ancient liberties of the House, it being the 
 usage of the Commons to debate only 
 amongst themselves." As a result of this 
 brave assertion, the King did not summon 
 Parliament again for seven years. 
 
 The next attack was the invention of 
 108
 
 DEVELOPMENT OF THESE RIGHTS 
 
 bills of attainder, of which I spoke in the 
 first lecture. A bill of attainder is an act 
 of Parliament finding a man guilty, or de- 
 priving him of civil rights, without a trial of 
 any sort. Thomas Cromwell, by the King's 
 express command, inquired of the judges 
 whether, if Parliament should condemn a 
 man to die for treason without hearing him 
 in his defence, the attainder could be dis- 
 puted. The subservient court replied that 
 while it would form a dangerous precedent, 
 Parliament was supreme and no attainder 
 could be subsequently questioned in a court 
 of law. And by the irony of fate, Cromwell 
 was himself the first to perish by such a bill. 
 But the device of attainder, thus established, 
 was used both by Henry VIII, and later by 
 the Stuarts, as a convenient method of get- 
 ting rid of political adversaries; and while 
 it has never been forbidden in the British 
 Constitution, it inspired our ancestors with 
 so much horror that it is with us doubly 
 forbidden in the Federal Constitution, first 
 to the Federal Government and then to the 
 States. 
 
 The next effort of Henry VIII to get rid 
 of constitutional liberties, while respecting 
 109
 
 THE AMERICAN CONSTITUTION 
 
 the form of law, was to secure an act giving 
 his own proclamations the force of law. 
 This, of course, is utterly counter to the 
 English Constitution, as it had been won 
 back from Norman kings in the preceding 
 four hundred years. Nevertheless, the power 
 of declaring laws or ordinances by the King, 
 or by the King in Council, remained until the 
 time of George III; and was one of the things 
 the Declaration of Independence complained 
 of — as it did also of the corresponding power 
 of the King to suspend laws at his own dis- 
 cretion. Both were complained of in our 
 Declaration of Independence and are for- 
 bidden by our own Constitutions. The 
 President can make no law and he can sus- 
 pend no law; nor can he lawfully promise 
 that the law shall not be enforced. 
 
 Under Edward VI the law of treason 
 which had been stretched very far under 
 Henry VII, was at first brought back to 
 constitutional principles, but afterwards re- 
 enacted in a worse form than ever; until 
 Parliament interfered and enacted that no 
 person should be indicted for any treason 
 except on the testimony of two lawful wit- 
 nesses who should be brought face to face 
 no
 
 DEVELOPMENT OF THESE RIGHTS 
 
 with him at his trial. This safeguard, al- 
 though shamelessly evaded or disregarded 
 under Elizabeth and James I, never dis- 
 appeared from the English Constitution 
 and became part of ours. Aaron Burr was 
 saved by it. In the short reign of Edward 
 VI also appears the first clearly authenti- 
 cated instance o( torture. Now, the English 
 law does not admit of torture. But the 
 final note of the Tudor attempt to overthrow 
 popular liberty is best expressed by a 
 German — Gneist. It existed in an attempt 
 to govern by the King in Council rather than 
 h{ Parliament and courts; and so to manipu- 
 la':e both the courts and the legislature as 
 to make them subservient to the despotic 
 pover of the Council, in which the royal will 
 wa; omnipotent. Much as if to-day both 
 Ho\ses of Congress and the courts were to 
 beccme subservient either to the President 
 or t) his Cabinet, which he controlled. 
 Morover, this Council — like our Interstate 
 Commerce Commission — was both legis- 
 lative)^ administrative and judicial. And 
 among other things it governed — for 150 
 years^he American colonies. Its power 
 rested pn an idea of "an extraordinary 
 III
 
 THE AMERICAN CONSTITUTION 
 
 dictatorial power residing in the King which 
 in any state crisis could thrust aside self- 
 imposed barriers, laws and judicial consti- 
 tution and find a remedy by extraordinary 
 measures, jurisdiction and ordinances." 
 
 Still, however, the Tudor tyranny was 
 powerless in the presence of an armed peo- 
 ple. Its weakness lay in the absence of a 
 standing military force. But in 1549, as 
 a consequence of the Peasants' revolt — 
 who revolted because of the enclosure o^ 
 common land — Somerset, the protector, mec 
 Jack Cade at the head of a hundred thoi- 
 sand agricultural laborers in Kent with tie 
 aid of German and Italian mercenari<s, 
 regular soldiers, now for the first time en- 
 ployed by English rulers in the coercon 
 of English subjects. 
 
 We have now (1550) a standing amy. 
 The natural consequences follow; in coirts- 
 martial, military law; billeting of solders, 
 overawing the courts; and these are theprin- 
 cipal things complained of against Oarles 
 I in the Petition of Right. But then were 
 other rights that began to be interferd with 
 at this time. The press, for instane, was 
 placed under a strict censorship, (rovern- 
 112
 
 DEVELOPMENT OF TFIESE RIGHTS 
 
 ment interference with elections became a 
 common practice. Freedom of speech was 
 attacked in the House of Commons by EHza- 
 beth herself — ^causing one Peter Wentworth, 
 a Cornishman, to say "Sweet is the name of 
 liberty; but let us take care lest, contenting 
 ourselves with the sweetness of the name, 
 we lose and forego the thing. Two things 
 do great hurt here, one a rumor which run- 
 neth about the House: *Take heed what you 
 do. The Queen's Majesty liketh not such 
 a matter. Whosoever preferreth it she will 
 be offended with him.' The other is a 
 message sometimes brought into the House, 
 either of commanding or inhibiting. — I 
 would to God, Mr. Speaker, that these two 
 were buried in Hell. The King hath no 
 peer in the kingdom; but he ought to be 
 under the law because the law maketh him 
 a king." To this Queen Elizabeth replied: 
 ** Privilege of speech is granted; but you 
 must know what privilege ye have; not to 
 speak every word what he listeth, or what 
 Cometh into his brain to utter; your privilege 
 is Ay or No"— and Mr. Peter Wentworth 
 was committed to the Tower. 
 
 The next attack was on the liberty of 
 113
 
 THE AMERICAN CONSTITUTION 
 
 trade. Elizabeth, unwilling to incur the 
 unpopularity of a direct tax, sought to raise 
 money by the granting of monopolies, lavish 
 grants to her courtiers of patents to deal 
 exclusively in coal, leather, salt, oil, vinegar, 
 starch, iron, lead, yarn, glass, and other 
 common necessaries of life. This grievance 
 was attacked in Parliament by a Mr. Bell 
 who was at once summoned before the 
 Queen's Council and returned to the House 
 *'with such an amazed countenance that it 
 daunted all the rest." The abuse rose to a 
 greater height. So numerous were the arti- 
 cles subject to monopoly that when a list of 
 them was read over in 1601, an indignant 
 member exclaimed "Is not bread amongst 
 them ? Nay, if no remedy is found for this, 
 bread will be there before the next Parlia- 
 ment." 
 
 The populace openly cursed the monop- 
 olies, and seeing that resistance was no 
 longer politic or even possible, Elizabeth, 
 with a tact quite modern, sent a message 
 to the Commons promising that some should 
 be presently repealed, some superseded and 
 none put in execution but such as should 
 first have a trial according to the law, for 
 114
 
 DEVELOPMENT OF THESE RIGHTS 
 
 the good of the people— "good trusts and 
 bad trusts." This, however, was not suf- 
 ficient; and the great anti-monopoly statute 
 was passed two years later. This act has 
 passed into the British Constitution, and 
 although the word "monopoly" does not 
 appear in the Federal Constitution they are 
 forbidden by the Constitutions of several of 
 the States, and even this is hardly necessary, 
 for they are contrary to the common law. 
 
 We come now to the House of Stuart. 
 Their attack on English liberties may be 
 summed up in two phrases. "Abnormal 
 centralization," says our great historian, 
 Hannis Taylor, "abnormal centralization 
 was the fault of the House of Stuart." And 
 the English Taswell-Langmead adds, "per- 
 sonal government, 'thorough.'" It began 
 with the device of interfering with the elec- 
 tions. Neglecting the old principle that 
 they should be free, James I took upon him- 
 self to specify the kind of men who were to 
 be elected to the House of Commons, and 
 directed that all returns should be sent to 
 his Court of Chancery, which should reject 
 such men as did not come up to his standard. 
 So here the House had another fight, for 
 115
 
 THE AMERICAN CONSTITUTION 
 
 their own right to determine contested elec- 
 tions; and it came to a head in a document 
 they drew up and presented to the King, 
 modestly entitled "A form of Apology and 
 Satisfaction to be delivered to his Majesty." 
 This "form of apology" consisted in calling 
 attention to the maintenance by the King of 
 private law suits, to the monopolies of trade 
 companies still existing, to the assertion that 
 the Commons held their privileges of right 
 and not of the King's grace; that they were 
 the highest court in the realm; that the King 
 had no business to meddle with the returns 
 of their elections and other not too apolo- 
 getic matters. This complaint the King met 
 by allowing years to elapse without call- 
 ing his Parliament together; and this fa- 
 miliar abuse of the Stuart kings led to our 
 constitutional provision that Congress shall 
 meet at least once every year. James re- 
 peated the offence of trying to make laws 
 himself, and proclaiming certain acts to be 
 crimes; and endeavored in vain to get a 
 judgment from the great Coke that this was 
 lawful. Coke said, "The king may make 
 a proclamation of the law already existing, 
 but of no new law; to put people in fear of 
 ii6
 
 DEVELOPMENT OF THESE RIGHTS 
 
 his displeasure, but not to inflict any fine 
 or punishment." He attacked his enemies 
 freely for poHtical hbel and in one case the 
 royal officers searched a clergyman's house 
 and found a manuscript sermon which had 
 never been preached. It was forwarded to 
 the King's Council, and the sentiments ex- 
 pressed not pleasing them, the clergyman 
 was put to the rack and tortured and then 
 indicted for treason on the ground that the 
 manuscript contained matters which would 
 be seditious if published. And here comes 
 a noteworthy event. James directed his at- 
 torney-general, Bacon, to confer with the 
 judges of the King's Bench separately and 
 find out whether they would consider such 
 a thing treason; in short he tried to ascertain 
 and probably to influence, their opinions. 
 Chief Justice Coke objected (so Bacon re- 
 ported to the King), that ''such private, 
 auricular, taking of opinions was not ac- 
 cording to the custom of the realm." The 
 other judges weakened; but Coke persist- 
 ently maintained that a mere declaration of 
 the King's unworthiness to govern, in a 
 written sermon which had never been 
 preached, could not amount to treason. 
 117
 
 THE AMERICAN CONSTITUTION 
 
 Nevertheless the unfortunate minister was 
 sentenced to death, but died in jail before 
 he could be executed. 
 
 Now here begins a most pertinacious and 
 continued attempt made by both James and 
 Charles I to undermine the right of the sub- 
 ject to law, by intimidating or controlling the 
 courts. It lasted over fifty years; and ended 
 with the attempt to bulldoze the great 
 Chief Justice Coke. The King asserted his 
 right to interfere with the opinions of the 
 judges in every case in which the rights of 
 the Crown were in the slightest degree in- 
 volved. This claim was met by pertina- 
 cious denial. Finally, the King ordered the 
 twelve judges of the court not to proceed 
 further in a certain cause until they should 
 hear his pleasure. He complained that of 
 late the courts of common law had grown 
 so vast and transcendent as to meddle with 
 the King's prerogative. Most of the judges 
 fell upon their knees and asked his pardon, 
 but Coke reiterated his opinion that the 
 court should neither postpone or try a case 
 upon the order of a king. King James then 
 asked a formal legal opinion of the court 
 whether, if his Majesty conceived a case to 
 ii8
 
 DEVELOPMENT OF THESE RIGHTS 
 
 concern him either in power or profit and 
 thereupon required to consult with them 
 and that they should stay proceedings in the 
 meantime, they ought not to stay, accord- 
 ingly. From Coke no other answer could 
 be extracted than, that "whenever such a 
 case should come before him he would do 
 what was fitting for a judge to do." Then, 
 a few weeks later he was censured by the 
 King's Council and suspended from his 
 ofifice, and not long afterwards received 
 notice that he had ceased to be Chief 
 Justice. This was in 1616. In 1642 the 
 Civil War began. 
 
 "The disgrace of Coke," says Gardiner, 
 the historian, "is a great historical land- 
 mark." The common-law judges now held 
 their oflfices at the "good pleasure of the 
 sovereign." All this happened in 161 6. It 
 was not until after the English Revolution 
 that the Act of Settlement declared that all 
 judges should hold their office during good 
 behavior and have neither their salaries nor 
 their places dependent on the Executive. 
 This ends the period of transition. The 
 King, having acquired the legislative power, 
 both by packing his Parliament and by cre- 
 119
 
 THE AMERICAN CONSTITUTION 
 
 ating a legislative body outside of Parlia- 
 ment, had now grabbed the judicial power 
 also, by causing the judges to feel that they 
 held their office only during his good pleas- 
 ure and disgracing those who stood against 
 it. We are now fairly embarked on the 
 career of personal government which be- 
 came the rallying cry of Charles I — he called 
 it "Prerogative." Both James and Charles, 
 and much more indeed after them George 
 III, endeavored to carry out personal gov- 
 ernment by doing without the Cabinet and 
 having a private cabinet of court favorites. 
 Hannis Taylor tells us that in order to make 
 the system of governing without a Parlia- 
 ment more responsive than ever to the King's 
 personal will, James revived the detested 
 influence represented by court favorites; and 
 you will doubtless remember that this was 
 so notable under George III that our re- 
 bellion was practically brought on by the 
 government of the Earl of Bute, a Scotch 
 favorite of King George, who was not only 
 not in the Cabinet but had been turned out of 
 the same; yet his influence prevailed against 
 the legitimate cabinet of Lord North, who 
 at one time might have placated the angry 
 
 120
 
 DEVELOPMENT OF THESE RIGHTS 
 
 colonies. "England," says Burke, "was 
 governed by an interior cabinet — a secret 
 coterie of the King's friends." 
 
 Finally, in 1624, James endeavored to get 
 on without a Parliament entirely. Charles I, 
 succeeding, after one or two abortive trials of 
 Parliament, did the same thing. His first 
 Parliament, by the great John Eliot, at- 
 tacked the administration of a private 
 favorite, the Duke of Buckingham. Where- 
 upon Charles said to the House, "I must let 
 you know that I will not allow any of my 
 servants to be questioned among you, much 
 less such as are of eminent place and near 
 to me"; and a few days later the King sum- 
 moned the Commons to his presence and 
 told them to "remember that parliaments 
 are altogether in my power for their calling, 
 sitting, and dissolution; therefore, as I find 
 the fruits of them good or evil, they are to be 
 continued or not to be." His last Parlia- 
 ment signalized its existence by the ominous 
 great Petition of Right. The Lords vainly 
 proposed an amendment saving the sover- 
 eign power to his Majesty, but when the 
 petition came back, Sir Edward Coke, — 
 who had bobbed up serenely in the House of 
 121
 
 THE AMERICAN CONSTITUTION 
 
 Commoiis — refused. *'I know how to add 
 ' sovereign ' to the King's person, but not to 
 his power," said he, "and we cannot 'leave' 
 to him a * sovereign ' power for we were never 
 possessed of it. In my opinion it weakens 
 Magna Charta and all the statutes, for they 
 are absolute without any saving of sovereign 
 power. Take we heed what we yield unto. 
 Magna Charta is such a fellow that he will 
 have no 'sovereign.'" Charles I refused to 
 sign the Petition of Right at first, returning 
 a long and equivocal answer. Whereupon 
 the Commons proceeded to impeach his 
 favorite, Buckingham, and then he hastily 
 signed the bill as requested. 
 
 The principal new liberty prayed for in 
 the Petition of Right was to be relieved from 
 martial law and from the tyranny of com- 
 missions appointed by the King. But no 
 Parliament was called again until the Long 
 Parliament in 1640. Thus, England did 
 without a free government for eleven years. 
 France did without a States-General for 
 one hundred and seventy-four years; but in 
 both countries when the people's representa- 
 tives were re-assembled their first act was 
 to overthrow royalty and execute their king. 
 122
 
 DEVELOPMENT OF THESE RIGHTS 
 
 During these eleven years monopolies 
 were re-established and applied to every 
 article of ordinary consumption. Royal 
 proclamations made the law; and the courts 
 of Star Chamber and High Commission, 
 outside the common law, by cruel and bar- 
 barous punishment, without a jury trial, 
 maintained a reign of terror. The Bishop 
 of Lincoln was fined. A poor clergyman 
 who had written him a letter had his ears 
 nailed to the door in front of his school. The 
 father of the Archbishop of Glasgow had 
 one ear cut off and his cheek branded. There 
 were no juries in England and no common 
 law. Everything was done by royal boards 
 and high commissions — but finally arbitrary 
 government split upon the old rock. The 
 King endeavored to impose customs duties 
 without an Act of Parliament upon the 
 merchants of England; they resisted; and 
 when they were brought before the King's 
 Council, one of them — Richard Chambers — 
 ventured to declare that ''merchants are in 
 no part of the world so screwed as in Eng- 
 land. In Turkey they have more encour- 
 agement"; whereupon he was committed to 
 the Marshalsea for contempt. 
 
 123
 
 THE AMERICAN CONSTITUTION 
 
 Next, the King turned his attention to the 
 land owners. He imposed a huge tax to 
 build a supposed navy, which never existed 
 but on paper. But in the effort to collect 
 this tax, he ran up against a modest country 
 gentleman, one John Hampden of Bucking- 
 hamshire, who refused to pay twenty shil- 
 lings, being the sum assessed upon his estate. 
 The result you know. Charles committed 
 Eliot and eight of his associate members to 
 the Tower, and on the day set for its reas- 
 sembling, dissolved the Parliament in which 
 John Eliot had made his last and Oliver 
 Cromwell his first speech. John Eliot died 
 in gaol; and when his son asked permission 
 to take his father's remains for burial to the 
 country home in Devon where he was loved 
 and honored by all, the King wrote: — "Let 
 Sir John Eliot be buried in the church of 
 that parish where he died." Then followed 
 eleven years of personal rule, thorough and 
 strenuous. The king's leader was Straf- 
 ford — of whom Green, the historian, said, 
 "Strafford is the one English statesman of 
 all time who may be said to have had no 
 sense of law." And Strafford was finally 
 indicted for this, that is to say, for conspiring 
 124
 
 DEVELOPMENT OF THESE RIGHTS 
 
 to subvert the law of England; Charles could 
 not save him and he perished on the scaffold. 
 Charles himself was beheaded in 1649. 
 
 We have no time to dwell upon the Com- 
 monwealth except to say that its later history 
 shows as well the danger of unconstitutional 
 government by a legislature as by a king. 
 Charles did little worse than the Rump 
 Parliament, while the Protector showed a 
 disregard of the right to law quite as cynical 
 as that of a Stuart and much more frank. 
 Disgusted with his Parliament he marched 
 in with a file of soldiers, cleared the mace 
 from the table and closed and locked the 
 doors. Bradshaw, president of the Council, 
 said to Cromwell, "Sir, you are mistaken 
 to think that the Parliament is dissolved. 
 No power under heaven can dissolve them 
 but themselves. Therefore, take you notice 
 of that." And after eight years of govern- 
 ment by the Army, the survivors of this same 
 House of Commons, without a new election, 
 reassembled to welcome Charles IL 
 
 It is a curious fact that it was the con- 
 servative element in the House who en- 
 deavored to persuade Cromwell to take the 
 title of king. Our American historian tells 
 125
 
 THE AMERICAN CONSTITUTION 
 
 us that the reason of this was that they 
 beheved that the prerogative as Hmited and 
 defined by law, the hmited powers of a king, 
 were less dangerous to public liberty than 
 the novel powers of a protector unrestrained 
 by any constitution. Cromwell was deterred 
 from accepting it by the angry protest 
 of the army; but he succeeded in getting 
 through the second new constitution in two 
 years— the "Act of Government," under 
 which the supreme power was still to re- 
 main with Cromwell; and — what he par- 
 ticularly wanted — he was authorized to 
 name his own successor (Taylor, II, 352.) 
 Mr. Roosevelt omits to note this in his " Life 
 of Cromwell." 
 
 Both Charles II and James II interfered 
 with the people's liberties mainly in their 
 religious rights, and that need not detain 
 us, but James increased the standing army 
 to 30,000. James II, however, played the 
 old trick of consulting the judges privately 
 as to what their opinion would be on a pro- 
 posed course of policy, and when it ap- 
 peared that the chief justice, the chief baron 
 of the exchequer and two other judges were 
 of opinion that the King could not suspend 
 126
 
 DEVELOPMENT OF THESE RIGHTS 
 
 the law of England in the interest of the 
 Catholics, these four judges were dismissed 
 and their places supplied by others who were 
 known to be subservient to the royal will. 
 "I am determined," said the king, "to have 
 twelve judges who will be all of my mind as 
 to this matter." "Your Majesty," answered 
 the chief justice, Jones, ''Your Majesty 
 may find twelve judges of your mind, but 
 hardly twelve lawyers." 
 
 The people, however, did win from 
 Charles II the great Habeas Corpus Act 
 which is the final perfection of that machin- 
 ery for the personal liberty of the English- 
 man that I spoke of in my second lecture. 
 But James kept on interfering, and again 
 the people rose, expelled their king, and 
 the rising wave of the Revolution left in 
 its flood the highest constitutional docu- 
 ment since Magna Charta — the great Bill of 
 Rights I have so often referred to. It re- 
 peats all the old liberty rights we have been 
 discussing in these four lectures and adds 
 to them a prohibition of standing armies 
 without the consent of the people, asserts 
 the right of people to bear arms, protects 
 them from excessive bail or excessive fines 
 127
 
 THE AMERICAN CONSTITUTION 
 
 or cruel punishments, and guarantees every 
 man the right to assemble for political pur- 
 poses and to petition the government. And, 
 most of all, it adds the great principle "That 
 the pretended power of suspending laws, 
 or the execution of laws, by regal authority, 
 as it hath been assumed and exercised of 
 late, is illegal." Finally, twelve years later, 
 came the Act of Settlement— interesting 
 to Englishmen because it provides for the 
 descent of the Crown to Protestants only, 
 but mainly notable to us because it puts back 
 the provision omitted in the Bill of Rights 
 that all judges should hold their office for 
 life or during good behavior, for a fixed 
 salary, and could only be removed by Parlia- 
 ment and never by the king; and adds an- 
 other significant principle that the king may 
 not pardon a man whom the Commons wish 
 to impeach. And this, the last of the Eng- 
 lish constitutional documents, closes with 
 the sentiment with which our first lecture 
 began — the laws of England, for securing 
 the rights and liberties of the people, are 
 the birthright of the people; and all queens 
 and kings ought to administer the govern- 
 ment according to said laws. And they 
 128
 
 DEVELOPMENT OF THESE RIGHTS 
 
 mean here by the "laws" what we now call 
 the English Constitution. 
 
 Nearly a quiet century of government by 
 Parliament went by, and at last we come 
 to George III. And he lost America by 
 failing to understand two of the earliest 
 and cardinal principles of the English Con- 
 stitution. "'George, be King,' was the les- 
 son his mother repeated to him as a child," 
 says Horace Walpole. He was the most 
 popular sovereign England had had in two 
 hundred years, and he determined at the 
 outset to reassert the personal power of the 
 Crown. Taswell-Langmead tells us that 
 the very characteristics which in a private 
 station would have been accounted merits, 
 rendered him unfit to be a constitutional 
 king. **By his meddlesome energy and 
 restless activity in regulating every affair of 
 state from the greatest to the least, combined 
 with a resolute obstinacy in enforcing his 
 own views against the opinion of his consti- 
 tutional advisers, he succeeded in reducing 
 the nation from prosperity to the depths of 
 adversity and in depriving the country for- 
 ever of its American colonies." In 1780 
 even the House of Commons carried the 
 129
 
 THE AMERICAN CONSTITUTION 
 
 celebrated resolution introduced by Mr. 
 Dunning "That the influence of the Crown 
 has increased, is increasing and ought to be 
 diminished," but it was not until America 
 was lost that George III came back to con- 
 stitutional government. In a sense, there- 
 fore, we Americans — and so every constitu- 
 tional historian is agreed— we Americans 
 saved for the last time the liberties of the 
 English people. In asserting our own, they 
 resisted us and we were lost to them; but 
 in the process we gained them theirs. To 
 attempt to govern any English people with- 
 out a legislature by the King in Council, 
 by the Executive alone; to attempt to tax 
 even loyal Canada by Act of Parliament at 
 Westminister and not of Parliament at 
 Ottawa; to subject Australia or New Zea- 
 land to the government even of an imperial 
 House of Commons in which they were 
 not represented; — would now call forth the 
 jeers even of a Tory majority. This is the 
 last of the constitutional principles we have 
 given back to England. We left the British 
 Empire because there was too much personal 
 government. England learned the lesson well 
 and no king will repeat the mistake again. 
 130
 
 THE EXPRESSION OF THESE LIBERTIES 
 IN OUR FEDERAL CONSTITUTION 
 
 ALL of these liberties we have been dis- 
 l\ cussing, the Hberties of the people, were 
 re-established in our Federal Constitution 
 in their early and most vigorous form, or in 
 such improved form as the experience of our 
 English ancestors under the Stuarts and 
 Tudors, and the experience of our own 
 ancestors under George III, suggested. 
 Except the two or three cardinal constitu- 
 tional inventions that we made, it may be 
 doubted whether there is anything in our 
 Constitution that is more than an expression 
 or an amplification of an English Constitu- 
 tional principle. But it will be extremely 
 interesting to consider both the form of 
 words that we chose and the number of 
 principles we decided to express constitu- 
 tionally; and more interesting still to note 
 their division among the Executive, the 
 131
 
 THE AMERICAN CONSTITUTION 
 
 Legislative and the Judicial powers; and 
 the other great three-fold division between 
 the powers of the Federal Government, the 
 powers or rights of the States, and the rights 
 reserved or retained by the people, — which 
 forms indeed the special subject of this 
 course of lectures. We shall also have 
 occasion to speak particularly of such rights 
 or powers as seem to be of overweening 
 importance in the future. Indeed, for the 
 rest we shall look to the future rather than 
 to the past. 
 
 It is most interesting to make a careful 
 analysis of our Constitution, and note what 
 importance it apparently assigns to these 
 several divisions of power. We will con- 
 tinue our custom of taking up the rights of 
 the people first, that domain of sovereign 
 power which President Roosevelt seems 
 to think was all surrendered by the people 
 to the Federal Government when they 
 formed the Union. The Constitution of 
 the United States in its body and in the 
 Amendments expresses or recognizes, in 
 thirty-nine clauses, no less than sixty-six 
 of these rights reserved to the people, which 
 the Federal Government cannot take away. 
 132
 
 EXPRESSION IN THE CONSTITUTION 
 
 On the other hand, when we come to the 
 powers that are surrendered, given up by 
 the people or by the States, to the Central 
 Government, we can count, on a careful 
 analysis, in fifty-seven clauses but sixty- 
 four. Then we can count eleven more 
 things which, being forbidden in the Con- 
 stitution to both the Federal Government 
 and the State Governments, are inferentially 
 left with the people, — making seventy-seven 
 rights or powers in all expressly mentioned 
 or necessarily implied by this short docu- 
 ment, which are forever to be left in the 
 people's hands. 
 
 Now, as to the division of these sixty-four 
 Federal rights or powers between the three 
 branches of Government, Legislative, Ex- 
 ecutive, and Judicial; and I put these in 
 the order, as the Constitution does, of their 
 relative importance and dignity. I shall 
 have failed indeed, if I have not persuaded 
 you that the Anglo-Saxon theory always was 
 that the people through their representatives, 
 that is, the Legislature, were the sovereign 
 power, the sovereign law-making body, and 
 as such, superior to the Executive, the 
 King. Our Constitution recognizes that 
 
 ^33
 
 THE AMERICAN CONSTITUTION 
 
 by adopting this order, mentioning the 
 departments as so arranged. Taking, there- 
 fore, the legislative power first, we can 
 count nineteen powers expressly given to 
 Congress and we can count about seventy 
 expressly denied. 
 
 Our Executive, as you know, corresponds 
 to the English King, though elected but for 
 a term of four years, and, as our Supreme 
 Court has said, *'With the loss of many a 
 flower of the English King's prerogative." 
 On the other hand, he has, in many respects, 
 more powers than an English King under 
 the Constitution, as we shall find when we 
 consider them in detail. Great as they 
 are, however, I can only find seven powers 
 actually given to the President by the Con- 
 stitution of the United States. All others 
 are therefore denied. And in this connec- 
 tion it is a most striking thing to note that 
 for the President the Constitution expressly 
 provides a duty and an oath. The duty is 
 to execute the laws; (Art. 3, Section 3) "He 
 shall take care that the laws be faithfully 
 executed." The oath is (Art. 3, Section i, 
 clause 7) "To preserve, protect, and defend 
 the Constitution of the United States." 
 134
 
 EXPRESSION IN THE CONSTITUTION 
 
 The judicial powers are almost negligible, 
 for, in a sense, the courts have none. The 
 Constitution only recognizes the Supreme 
 Court. It gives to Congress the power to 
 make other courts. Their duty, in a gen- 
 eral way, is to try all suits between two 
 States, or where the United States itself is 
 a party; to try generally all cases arising 
 on the sea or from the navigation of ships, 
 — what we call Admiralty — and finally, what 
 has grown most important of all, to try any 
 suit that may happen to be between citizens 
 of different States or between a corporation 
 of one State and a citizen of another. They 
 are given no other powers, and their main 
 constitutional restriction is that they shall 
 try no case coming up from a State court 
 except according to the common law. 
 
 When we come to our other division, our 
 second American invention which makes it 
 possible for a strong national government to 
 coexist with the local self-government of a 
 free people, the division between the National 
 powers and "States' Rights" — the rights 
 never given by the people to the Federal 
 Government — w^e shall find again that it is 
 the people that are primarily thought of in 
 135
 
 THE AMERICAN CONSTITUTION 
 
 the Constitution. The number of rights 
 reserved to them from the Federal Gov- 
 ernment is, as we have said, sixty-six, to 
 which we must add the rights which 
 resuk from things that are prohibited 
 both to the Federal Government and to the 
 States, making seventy-seven in all. The 
 rights given to the States by the Federal 
 Constitution, that is, the rights therein 
 mentioned as expressly reserved to them, 
 are only nineteen. Of these, twelve are 
 forbidden to the Federal Government, four 
 are shared or may be exercised by both, 
 and three are left indefinite; but this small 
 number, nineteen, of course, does not rep- 
 resent all the rights reserved to the States. 
 Under the Tenth Amendment, all rights not 
 expressly given to the Federal Government 
 are reserved to the States or to the people. 
 These nineteen clauses merely represent 
 those rights which, for some reason, were 
 thought sufficiently important to mention 
 expressly in the Constitution. 
 
 Finally, the number of rights expressly 
 
 given to the Federal Government amounts, 
 
 as I said, to sixty-four. Of these, forty-three 
 
 are forbidden to the States and seventeen 
 
 136
 
 EXPRESSION IN THE CONSTITUTION 
 
 may apparently be shared or exercised by 
 the States. At least, there is nothing in the 
 Constitution to forbid it. Only four rights 
 are expressly shared, divided, between the 
 Federal Government and a State: the right 
 of making a new State out of two States 
 previously existing, or dividing an old State 
 into two or more new States; this can only 
 be done by the joint action of the National 
 Congress and the legislatures of the States 
 concerned; the right of levying imposts 
 or duties with the consent of Congress; the 
 duty of maintaining a republican form 
 of Government; and the power of amend- 
 ing the Constitution. In only one case can 
 the Federal Government coerce a State; 
 that is, when it ceases to maintain a republi- 
 can form of Government; though the Four- 
 teenth Amendment added another case by 
 implication, (apparently we were too proud 
 to put it in words,) that is, that the United 
 States may coerce a State if it secedes. The 
 war settled that. On the other hand Article 
 5 of the original Constitution seems express- 
 ly to provide that a State may secede if it 
 be 'deprived of its equal suffrage in the 
 Senate. It is under this clause that we are 
 ^S7
 
 THE AMERICAN CONSTITUTION 
 
 helpless to alter a state of things where 
 Nevada, having about the population of 
 the town of Brookline, sends two senators 
 to the United States Senate. 
 
 Recapitulating, though I suppose this will 
 be interesting only to persons who delight 
 in figures, there are thirty-nine clauses ex- 
 pressing powers left with the people in the 
 Constitution of the United States, though 
 at least fifty or sixty more are so left by 
 necessary implication. Sixty-six clauses 
 contain things forbidden to the States, and 
 eighteen contain things expressly allowed 
 them. Sixty-one clauses state things for- 
 bidden the Federal Government, and sixty 
 the things expressly allowed it. Three 
 things are expressly given to both the 
 Federal Government and the States, and 
 twelve clauses contain things expressly 
 forbidden to both, while thirty-nine clauses 
 express powers withheld by the States or 
 the people. As a grand result, our Federal 
 Constitution contains one hundred and fif- 
 teen denials and only seventy-nine affirma- 
 tions of power; while there are thirty-nine 
 express reservations of sovereign domain 
 left to the people. The excess of negations 
 138
 
 EXPRESSION IN THE CONSTITUTION 
 
 over affirmations must not surprise us, for 
 all constitutions consist mainly in imposing 
 negatives. You will remember that the 
 British Constitution, which we have already 
 studied, consists mainly in showing what the 
 King or his officers may not do; and the 
 American Constitution is more complex, 
 because it imposes negations on the Congress 
 and the States as well as on the President. 
 Taking the people's rights first, the car- 
 dinal principle of all— that the people are 
 sovereign and that they have only clothed ^ 
 the National Government with part of their 
 powers — is expressed in two places. The first 
 words of the Preamble are "We, the people 
 of the United States, do establish this Con- ^ 
 stitution." It is not done by the States, as 
 the Secession States'-rights people used to 
 claim, it is done by the people as a whole. 
 State lines for a moment disappear and are 
 merged in the mightier fabric created by 
 the people of the Nation. 
 
 On the other hand, turn to the Ninth and 
 Tenth Amendments. *'The enumeration in 
 the Constitution, of certain rights, shall not 
 be construed to deny or disparage others 
 retained by the people." "The powers 
 139
 
 THE AMERICAN CONSTITUTION 
 
 not delegated to the United States by the 
 Constitution, nor prohibited by it to the 
 States, are reserved to the States respec- 
 tively or to the people." This is the great 
 assertion that seems to give the present 
 administration so much trouble, — the ex- 
 press statement that until the people choose 
 to amend the Constitution, they do not wish 
 the United States to exercise any powers 
 they have not expressly delegated to it. 
 Remember, most of the States refused to 
 come into the Union until they got the prom- 
 ise that this Tenth Amendment should be 
 adopted, which was done November 3, 1791, 
 only two years after the original Constitu- 
 tion went into force. There would have 
 been no Union but for this Amendment. 
 There would have been no Nation but for 
 the sacred promise to the people and the 
 States that these powers should be reserved. 
 Notice the words, "The powers not del- 
 egated to the United States by the Constitu- 
 tion." No powers are or can be delegated 
 by the United States to the States, or still 
 more, to the people. It is the other way 
 about. It is the people or the States who 
 delegate powers to the United States. Now, 
 140
 
 EXPRESSION IN THE CONSTITUTION 
 
 President Roosevelt in his great speech at 
 Harrisburg, October 3, 1906, used these 
 words when speaking of his desire to regulate 
 and control large fortunes: "Only the Nation 
 can do this work. To relegate it to the 
 States is a farce and is simply another way 
 of saying that it shall not be done at all." 
 Now I have nothing to do at present with 
 the argument that there should be a pro- 
 hibitive tax on the acquiring of large fort- 
 unes, nor even with the question whether 
 that is a function that under our system 
 should belong to the States or to the Nation 
 to regulate, but I would call your attention 
 particularly to the President's words. He 
 said it would be useless to relegate this 
 power to the States. I watched very care- 
 fully to see whether, in the repetitions of this 
 speech, that word ''relegate" would be 
 changed, but it was not withdrawn. On the 
 contrary it was used, if I mistake not, once 
 or twice again. But to use that one phrase, 
 to "relegate" a political power to the States, 
 misstates the principle of the American 
 Constitution. Under the Constitution, the 
 Nation can relegate nothing to the States. 
 It is the States or the people that delegate 
 141
 
 THE AMERICAN CONSTITUTION 
 
 powers to the Nation. Congress and the 
 President have no power to delegate or 
 relegate anything to the States. They could 
 not if they tried. If a power is not granted 
 to the Federal Government, it has nothing 
 to do with it. If the power is granted, it is 
 unconstitutional for it to break faith with 
 the Nation's compact with the people and 
 hand it back to the States again. That 
 last matter was carefully considered in the 
 Industrial Commission when one of the 
 plans advanced for the regulation of Trusts 
 was to relegate to the States the power over 
 interstate commerce which the people had 
 delegated to the Nation. It was felt that 
 there might be a grave constitutional objec- 
 tion. A trust which is given to you may 
 not by you be handed over to another. But 
 whether that be so or not, of a power actu- 
 ally given to the United States, there is no 
 question, it is axiomatic, that a power never 
 given to the United States, never parted with 
 by the people, cannot be either relegated or 
 delegated back from the Nation to the 
 States. It is the States, the people, that 
 make the Nation — not the Nation the States. 
 It is elementary that the Federal Govern- 
 142
 
 EXPRESSION IN THE CONSTITUTION 
 
 ment has no power to delegate anything. 
 It would be the creature endowing the 
 creator. It is the States — the people — 
 that have created the Federal Government, 
 and the Federal Government Is there only 
 to obey their behest. A sovereign may 
 make a grant to his people, but a gov- 
 ernment of limited powers may not endow, 
 with any rights, the people of whom it is 
 but the servant. 
 
 This is the great law of the Constitution. 
 The Constitution is the tablet where the 
 people have written their will and they have 
 written their will that It shall never be 
 changed save in the manner they have 
 appointed. That Is, by an amendment 
 ratified by the people's representatives in 
 three-fourths of the States. In another 
 speech written after the President's atten- 
 tion had been called to this amendment, he 
 says that he is for the people and for the 
 Constitution when it reserves the people's 
 rights, but not when it perpetuates the peo- 
 ple's wrongs. Of that who is to be the 
 judge, — one man, for the time being, the 
 President of the United States, or the people 
 of the United States ? 
 H3
 
 THE AMERICAN CONSTITUTION 
 
 The fundamental error lying in these 
 conceptions of our government is to sup- 
 pose that all powers exercised in other 
 countries, kingdoms, or empires,— ^sovereign 
 States, as they are called, — have been 
 necessarily under our Constitution, reposed 
 in some branch of the Government, State 
 or Federal. In this same speech, the Pres- 
 ident points out that there may be gaps of 
 power, gaps of prerogative, left between the 
 Nation and the State, areas of domain, which, 
 under our system, are exercised by nobody. 
 If that be true, it is because the people 
 willed it so. We have not clothed our 
 fabric of government, as I said at the begin- 
 ning, with all the sovereign powers of 
 European empires. As our Supreme Court 
 has said of the President, and it might 
 equally well say it of Congress, "He is not 
 a king, even for four years." The Federal 
 Government has indeed succeeded to many 
 of the rights of the British Crown and Par- 
 liament, but, as the great John Marshall 
 said: "With many a flower of their pre- 
 rogative stripped away." But these gaps 
 of which President Roosevelt complains, 
 are usually left by the non-action of the 
 144
 
 EXPRESSION IN THE CONSTITUTION 
 
 State, that is, of the people of a State. Does 
 that give the Federal Government a right 
 to interfere ? Does it not rather prove that 
 the people of that State desire no action on 
 that point ? This is their undoubted pre- 
 rogative, the undoubted prerogative of the 
 State. Conditions vary, views change, aims 
 differ. Because a State does not pass all 
 the laws that it might pass, or all the laws 
 that the President of the United States 
 thinks it should, does that fact alone give 
 the Federal Government a right to inter- 
 vene .f* We have never passed any laws 
 against trusts in Massachusetts. Does that 
 fact, under the Constitution, authorize Con- 
 gress to legislate upon the subject for us ^ 
 Labor laws, — the hours of labor, — marriage 
 laws, — the age of marriage, — differ under 
 the statutes of all our States. The dif- 
 ference of climate alone is reason enough 
 for this, to say nothing of social conditions. 
 The President seems to think, however, 
 that if he, or Congress, makes up his mind 
 that a nine-hour law in factories is right, 
 that very fact should authorize the Federal 
 Government to impose it on all the States. 
 One of the greatest safeties of our system of 
 H5
 
 THE AMERICAN CONSTITUTION 
 
 Government is that every State has the right 
 to try an experiment, to work out its salva- 
 tion in its own way, and the other States 
 profit by its example. English people have, 
 for a thousand years, dearly kept their 
 liberty, their persons, their property, their 
 domestic affairs, aye, and their political 
 affairs, at home in their own hands, each 
 community making its own rules, its own 
 customs; and they forced the Norman Kings 
 to respect them all. I do not believe we 
 shall part with this dearly-won heritage on 
 any momentary impulse to extirpate a 
 present wrong. 
 
 The second great right of the people 
 expressly reserved in the Federal Constitu- 
 tion I should put as the one I mentioned 
 in my first lecture. That wonderful prin- 
 ciple of the separation of the powers and 
 allowing no man or set of men to exercise 
 two of them, to both make the laws and 
 execute them or judge those who break 
 them. This I hold to be the second great 
 bulwark of freedom for the American peo- 
 ple, and I will venture to state that no one 
 ever questioned this until very recently, if 
 at all. We shall reserve more consideration 
 146
 
 EXPRESSION IN THE CONSTITUTION 
 
 of this subject for a future lecture. To- 
 night, merely by way of example, I would 
 call your attention to the fact that the Inter- 
 state Commerce Commission, to a certain 
 extent, and the Federal Bureau of Corpora- 
 tions (as the President would have it amend- 
 ed) both make laws and judge offenders. 
 This, you know, was made an objection to 
 the constitutionality of the Railway Rate 
 Regulation Bill, and it has not yet been de- 
 cided by the Supreme Court. Government 
 by boards, by commissions, rather than by 
 Congress and the other officers provided 
 for that purpose in the Constitution, is get- 
 ting to be a danger that is not only in the 
 Nation but in the States. I would remind 
 you of the abuses we found in the last lect- 
 ure which attended the system in England, 
 especially under Charles and George III. 
 Let us not forget it. A board or commission 
 is not a common-law creation. It stands 
 between the people and the common law. 
 It is apt to be an obstacle to the assertion 
 of their rights, a hindrance rather than a 
 help, and in the long run every board, yes, 
 even the railroad commissions, the gas 
 commissions of the several States, every 
 147
 
 THE AMERICAN CONSTITUTION 
 
 board, tends to become the creature of the 
 thing that it was created to control. This 
 separation of powers of which I speak is, 
 of course, contained at the beginning of 
 each of the three articles in the Federal 
 Constitution. Art. I, Sec. i, where it says 
 *' All legislative powers herein granted shall 
 be vested in a Congress." Art. II, Sec. i, 
 "The Executive power shall be vested in a 
 President." Art. Ill, Sec. i, where it says, 
 "The judicial power shall be vested in one 
 Supreme Court." This is as compendious, 
 though not perhaps so striking, a way of 
 putting this great principle, as we find in 
 the Constitution of Massachusetts, though 
 it does not contain those splendid words of 
 explanation, "To the end that it be a Gov- 
 ernment of laws and not of men." 
 
 The third great right of the people reserved 
 in the people, never delegated by them to 
 anybody to interfere with, is that of liberty; 
 and we have fully discussed the history and 
 the meaning of this great word to English 
 ears. It is found again in the Preamble, 
 4th line, where it says: "We, the people, 
 establish this Constitution in order to secure 
 the blessings of liberty." It is found again 
 148
 
 EXPRESSION IN THE CONSTITUTION 
 
 in the Fifth Amendment, where it says "No 
 person shall be deprived of liberty with- 
 out due process of law." It is found again 
 in the Fourteenth Amendment, Section i, 
 where all States are forbidden from making 
 or enforcing any law to abridge the priv- 
 ileges or immunities of citizens of the United 
 States, "nor shall any State deprive any 
 person of life, liberty or property without 
 due process of law." Of this right, I really 
 feel that I need now say no more. But the 
 great guard of this right is expressly guaran- 
 teed. Art. I, Sec. 9, CI. 2: "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 does not say who is to suspend it 
 then, but by our inherited precedent it could 
 only be by act of Congress. Lincoln, how- 
 ever, was compelled by the necessity of 
 public danger to suspend the writ without 
 such consent. 
 
 Related to this personal right is the provi- 
 sion that no bill of attainder or ex post facto 
 laws shall be passed. I have already ex- 
 plained what a bill of attainder is; and an 
 ex post facto law is a law made to try a man 
 149
 
 THE AMERICAN CONSTITUTION 
 
 by after the offence is committed, making 
 that a crime which was not crime when he 
 did it, or inflicting greater or severer punish- 
 ment. Closely related to this also is the 
 provision that judgment in cases of im- 
 peachment shall only extend to removal 
 from office and that there shall be no for- 
 feiture or corruption of blood for treason, 
 or other offences, Art. Ill, Sec. 3, CI. 2. 
 Clause I adopts the English Constitutional 
 definition of treason; and finally, the lib- 
 erties of the people are secured against too 
 much personal Government, against usurpa- 
 tions of the Executive, by the requirement 
 that Congress (Art. I, Sec. 4, CI. 2) shall 
 assemble at least once in every year. 
 
 The right of property is expressly secured 
 in the Constitution by the clauses I have 
 mentioned in the Fifth Amendment and 
 the Fourteenth Amendment, that neither 
 Nation nor State shall take away a man's 
 property except by due process of law; and 
 furthermore, still more effectively, against 
 the Federal Government, by the great provi- 
 sion that there shall be no taxation without 
 the consent of Congress, and that there shall 
 be no direct taxes at all imposed upon the 
 150
 
 EXPRESSION IN THE CONSTITUTION 
 
 people of the United States. For that is 
 the effect of Art. I, Sec. 2, CI. 3, and it was 
 intended to be the effect when it was adopted. 
 That is to say, there can be no direct tax 
 unless it be imposed upon the several States 
 absolutely according to their population. 
 Under this, the people of Texas, of Arkan- 
 sas, — of the poorer Southern States, would 
 have to pay the same tax that was paid by 
 the people in New York City or Boston; 
 and this makes the imposition of such a tax 
 prohibitive, and it was meant to be so, for 
 the people of the United States will not con- 
 sent to a tax which is not according to the 
 amount of property, but to the mere num- 
 bers of the people of each State. 
 
 The freedom of the people's representa- 
 tives is secured by the provision that mem- 
 bers of Congress shall be free from arrest and 
 shall not be questioned in any other place 
 for any speech or debate. By Art. I, Sec. 
 8, CI. I, all duties, imposts and excises shall 
 be uniform throughout the United States. 
 The danger of standing armies to the people 
 is protected against, as I have told you, by 
 Art. I, Sec. 8, CI. 12; neither the President 
 nor Congress can maintain the regular army 
 151
 
 THE AMERICAN CONSTITUTION 
 
 without a vote of the House of Representa- 
 tives every two years ; and (Clause i6), nei- 
 ther the President nor Congress can inter- 
 fere with the State mihtia except when em- 
 ployed in the actual service of the United 
 States. This is further expressly guaranteed 
 in the Second Amendment, which also says, 
 that the right of the people to keep and bear 
 arms shall not be infringed, and the Third 
 Amendment, which says that no soldier shall 
 be quartered in their houses. The religious 
 rights are found in Art. VI, Sec. 3, which 
 provides that no religious tests shall ever 
 be required as a qualification for office, and 
 again in the First Amendment, where Con- 
 gress is forbidden to make any law respect- 
 ing the people's religion or its free exercise. 
 The same amendment affirms the people's 
 right to freedom of speech, freedom of the 
 press, the right of political assembly (which 
 I discussed in an earlier lecture) and the 
 right to petition the Government for a 
 redress of grievances. Then, closely con- 
 nected with the liberty right is the right of 
 the people to be secure in their houses, — 
 "An Englishman's house is his castle." 
 Under the Fourth Amendment nobody, not 
 152
 
 EXPRESSION IN THE CONSTITUTION 
 
 even an officer or a magistrate, or a police- 
 man, may enter a person's house or search 
 his papers and effects without a formal 
 warrant duly issued upon probable cause, 
 supported by sworn testimony and stating 
 the reason why, the crime charged, the 
 places to be searched and what they expect 
 to find. The Sixth Amendment guarantees 
 to the people the great liberty right of trial 
 by jury, of being confronted with witnesses 
 against him, of having witnesses in his 
 favor; and the Seventh Amendment guaran- 
 tees trial by jury in civil cases and insists 
 upon the common law in any court of the 
 United States, while the Eighth Amendment 
 prohibits excessive bail, which, you remem- 
 ber, was one of the methods of evading the 
 habeas corpus employed by the Stuart Kings. 
 These are all commonplaces, perhaps. The 
 right of a man to a jury or a grand jury is 
 the cornerstone of our whole social fabric. 
 Not to be questioned except, indeed, in our 
 insular possessions. But there is a clause 
 of the Fifth Amendment which is to be very 
 much debated from now on, that is, that 
 other constitutional provision which guaran- 
 tees that no person shall be compelled in any 
 153
 
 THE AMERICAN CONSTITUTION 
 
 criminal case to be a witness against himself; 
 that is, compelled to furnish evidence which 
 may convict him of a crime. This, you 
 remember, was the great point in the Chicago 
 Beef Trust cases. Under a carelessly drawn 
 Act of Congress, all corporations engaged 
 in interstate commerce were compelled to 
 furnish testimony, when desired, by Mr. 
 Garfield, head of the Bureau of Corpora- 
 tions. Mr. Garfield forced the great pack- 
 ers in Chicago to give him that testimony 
 and then, apparently to his surprise and 
 that of the President, found that the Fifth 
 Amendment protected them from convic- 
 tion for the offences their own testimony 
 had disclosed. 
 
 You may remember the very severe crit- 
 icism imposed by the President upon one 
 judge for his decision sustaining the people's 
 liberties in this particular. With every de- 
 sire to convict offenders of the Chicago Beef 
 Trust, he could not, as an honest judge, 
 annul this cardinal guaranty of Anglo- 
 Saxon liberty; but after his decision was 
 rendered, it was referred to with disapproval 
 by the President in a message to Congress. 
 In fact, his remarks were almost identical 
 154
 
 EXPRESSION IN THE CONSTITUTION 
 
 with the remarks that I told you were made 
 by James I of the great Coke, when he also 
 refused to carry out the wish of the Ex- 
 ecutive; though the story, widely dissemi- 
 nated, has happily proven false, that a cer- 
 tain other judge, — a higher judge, — was ap- 
 proached by the President or his agent and 
 asked whether he would affirm this decision 
 if it were appealed and came before his 
 court, and made the same answer that the 
 great Coke made to King James "Sir, 
 when that case comes before me for judg- 
 ment, I will consider it as becometh a just 
 Judge." 
 
 The next great popular right is that of 
 equality, — political equality, and, as the 
 President has well said, "Equality of oppor- 
 tunity." How is that guaranteed in the 
 Federal Constitution ? Well, in the first 
 place, the Preamble uses the phrase "Gen- 
 eral welfare," which seems to imply it. Art. 
 I, Sec. 9, forbids titles of nobility. Art. 
 IV, Sec. 2, says that the citizens of each 
 State shall be entitled to all privileges and 
 immunities of citizens in the several States; 
 but after the slaves were emancipated, 
 these expressions were not considered suffi- 
 155
 
 THE AMERICAN CONSTITUTION 
 
 cient, and the Fourteenth Amendment was 
 adopted. "No State shall make or enforce 
 any law which shall abridge the privileges 
 or immunities of citizens of the United 
 States, nor deny to any person within its 
 jurisdiction the equal protection of the 
 laws." 
 
 These are the six or seven great cardinal 
 rights which are expressly in the Constitu- 
 tion reserved to the people under that name, 
 but this by no means ends the category of 
 the people's rights. If the President intends, 
 as he says, to enforce the Constitution when 
 it represents the people's rights, but not 
 when it represents the people's wrongs, he 
 will have to consider many another sentence 
 in the Constitution even with this limited 
 view. Although he has the right to call 
 together Congress in special session, you 
 will see that he cannot prevent their assem- 
 bling whenever they choose, and they are 
 bound to the people to assemble at least once 
 every year. Neither the President nor the 
 Senate has the power to originate taxation 
 (Art. I, Sec. 7). Neither the President nor 
 Congress can interfere with the State Mili- 
 tia except when employed in the actual 
 156
 
 EXPRESSION IN THE CONSTITUTION 
 
 service of the United States. In Art. I, Sec. 
 9, CI. 5, you will find a very important provi- 
 sion. No tax or duty shall be laid on arti- 
 cles exported from any State. The clear 
 intention of the Constitution was to make 
 trade between the States absolutely free, to 
 give the power to nobody to control it or 
 prohibit it in any way, though when we 
 come to discussing interstate commerce we 
 shall find a curious change has taken place 
 in our view of this matter in the last few 
 years. And the next clause says that no 
 preference shall be given by any regulation 
 of commerce to the ports of one State over 
 those of another. Some people think that 
 under the new law, the Interstate Commerce 
 Commission is giving a preference to Balti- 
 more and other southern ports over Boston. 
 Art. Ill, Sec. i, removes judges from the 
 power of the President after they have once 
 been appointed, by requiring not only that 
 they shall hold oflftce for life, but that their 
 compensation may not be diminished dur- 
 ing their continuance in office, though it 
 may be increased. And finally, life, liberty, 
 and property are expressly guaranteed, 
 not only by the Nation to the individual, 
 
 157
 
 THE AMERICAN CONSTITUTION 
 
 but to the individual as against the State 
 Governments, by the Fourteenth Amend- 
 ment. 
 
 The rights of the States and the powers 
 of the Federal Government will form the 
 subject of our next two lectures. It may 
 be well to close this with some consideration 
 of the powers given to the President, and the 
 powers given to Congress, and compare the 
 result with what we found in England. We 
 have briefly sketched the rights of the peo- 
 ple which neither the President nor Congress 
 can give away. Now, what powers have 
 the people delegated to them ? 
 
 Congress in the first place is not omnip- 
 otent as it is in England, but its powers 
 of legislation are definitely limited to seven- 
 teen subjects, and to such laws as are neces- 
 sary and proper for carrying into execution 
 both these seventeen powers and all other 
 powers which are given by the Constitution 
 to the United States Government. As I 
 have told you, the Federal Government, the 
 Government of the United States, is mainly 
 political; so you will find that most of these 
 powers are political. That is to say, the 
 great power of Government is to collect or 
 158
 
 EXPRESSION IN THE CONSTITUTION 
 
 raise moneys, by duties and excises, for the 
 purpose of the defence of the Union and the 
 general welfare of the United States. This 
 duty is put first; the necessary National 
 power to defend the Nation and raise money 
 for that purpose. Now, this general wel- 
 fare phrase is usually misunderstood. It 
 is spoken of as if there were a power given 
 Congress to pass any law that is for the gen- 
 eral welfare of the United States. Nothing 
 of this kind is in the Constitution. The 
 only mention of "general welfare" is that all 
 taxes must be for the general welfare of the 
 United States; and this, as you know, is an 
 old English Constitutional principle. 
 
 The next National power is the usual 
 sovereign right to borrow money, to create 
 a National debt, and also, of course, to coin 
 money, regulate weights and measures, and 
 provide against counterfeiting. Then, Con- 
 gress has the necessary National power of 
 declaring war; this is given to Congress, and 
 to Congress alone, not to the Executive. 
 This is also true in England; but the Pres- 
 ident has far more power in this particular 
 than has the King of England, for the Pres- 
 ident can provoke a war. He can, for 
 159
 
 THE AMERICAN CONSTITUTION 
 
 instance, mass the army on the frontier, or 
 order the navy on a minatory expedition. 
 This even the King of England could not do. 
 Our President is Commander-in-Chief; not 
 so the King. With the power to declare war 
 goes, of course, the power to support armies 
 and navies; and this is also given to Con- 
 gress exclusively, as it is in England to 
 Parliament, — to make rules for the Govern- 
 ment of the army and navy, to provide for 
 calling forth the State Militia to execute 
 the laws of the Union when necessary. 
 This is the only case where, under the 
 Federal Constitution, the National Congress 
 can, as it were, give orders to a State; and 
 when the Militia are so called out. Congress 
 has power to govern them. Then Congress 
 is given power to determine who shall be 
 considered United States citizens. It is 
 given the sovereign power of issuing patents 
 to inventors, and copyrights to authors, 
 these being the only monopolies recognized 
 by our law. It has sole power to punish 
 piracies and felonies on the High Seas, and, 
 of course, to erect and govern forts, maga- 
 zines, dockyards, and other needful build- 
 ings for the National defence. All these 
 1 60
 
 EXPRESSION IN THE CONSTITUTION 
 
 powers you may fairly call political; and 
 now we come to only three of the seven- 
 teen which may be considered domestic or 
 social. And it is certainly a coincidence 
 that these two or three matters, which form 
 the exception to the general rule that the 
 power of Congress is purely political, have 
 caused more doubt and led to more litiga- 
 tion than all the rest of them put together. 
 Congress is given power to regulate bank- 
 ruptcies throughout the United States. Con- 
 gress is given power to establish post-ofhces 
 and post-roads, and it has recently been 
 seriously advanced that this simple provi- 
 sion gives the National Government the 
 absolute dominion over all railroads. And, 
 finally. Congress is given power to regulate 
 commerce with foreign nations and among 
 the several States. These last are the four 
 words in the Constitution now most dis- 
 cussed, and under them the President seems 
 to think that the whole principle that the 
 Government's powers are mainly political 
 may be got rid of. These words were 
 originally put in the Constitution, not with 
 the notion of giving the Federal Govern- 
 ment the right to interfere or to regulate 
 i6i
 
 THE AMERICAN CONSTITUTION 
 
 interstate commerce, but for the purpose 
 of preventing the States from doing so. 
 Nevertheless, they may technically give to 
 Congress the power to regulate, or even to 
 forbid; and under the word "commerce" 
 it is now proposed to include not only 
 the goods or commodities actually trans- 
 ported in interstate commerce, or the in- 
 strumentalities of transport, steamboats or 
 trains of cars, which was all the word was 
 originally applied to, but even manufactures 
 made by any corporation doing business in 
 more than one State, or where the goods 
 manufactured or any part of them are ulti- 
 mately sold across State lines. Nor is this 
 all. Not only are all articles of commerce 
 and all manufactures so to be controlled, 
 but even the persons or corporations who 
 own them and the laborers or employees 
 who make them. This, we shall specially 
 consider in our last lecture. I would only 
 now call attention to the fact that this 
 phrase, "commerce among the several 
 States," one of the only three phrases in 
 all the powers given to Congress which 
 are not purely political, under the inter- 
 pretation proposed by President Roosevelt 
 162
 
 EXPRESSION IN THE CONSTITUTION 
 
 would alter our Constitution more radically 
 than almost any amendment could do. It 
 will cease to be purely political, but will 
 thrust its hand between every man and his 
 neighbor, between every man and his own 
 property. I told you at the beginning that 
 the English idea was that an Englishman's 
 life and his liberty and his worldly goods 
 lay under his own government or that of 
 his neighbors, and under laws made by 
 people in the same community, considering 
 only its welfare, which laws were tried at 
 home in the domestic courts. This change 
 will, in the long run, absolutely subvert 
 that principle. The States will lose control 
 of most of their business affairs, will lose 
 the power to tax their own enterprises, will 
 see their Courts shorn of their jurisdiction. 
 Hardly any business will be so small, so 
 local, as to be left to the State Power to 
 control. We shall all be under the Govern- 
 ment of Washington, under the legislation 
 of Congress, under the judgment of the 
 Supreme Court at Washington, quite as 
 completely and much more hopelessly than 
 the English of the Twelfth Century were 
 under the power of the royal Chief Justice, 
 163
 
 THE AMERICAN CONSTITUTION 
 
 the royal Chancellor and the lawmaking 
 by royal decree of the Norman Kings. 
 
 Of the judicial branch there is little to 
 say except that the common law must pre- 
 vail everywhere and that the Federal Courts 
 have now, as they should have, jurisdiction 
 of all suits involving the Federal Constitution 
 or laws, or between persons residing in dif- 
 ferent States, if either person wishes it. 
 
 Coming lastly to the Executive, the Pres- 
 ident, — who corresponds to the English 
 King. As I have already anticipated, he 
 has far more power in one particular than 
 has the English King. That is to say, he 
 can make war or be the cause of war. He 
 has in another respect far more power. He 
 can control the Legislation. Under the 
 modern English Constitution, the King, as 
 you know, has no veto. No King, not the 
 popular Edward VH, would dare to say no 
 to any law which has passed Parliament. 
 That has not even been tried since the reign 
 of Queen Anne. Never even by George III. 
 Our Executive has the right to declare void 
 any law passed by Congress unless it be 
 afterwards passed over his veto by two- 
 thirds of each house, a thing which has 
 164
 
 EXPRESSION IN THE CONSTITUTION 
 
 happened very few times in the history of 
 the country. Thirdly, our President may 
 make treaties with the consent of the Senate. 
 These three great powers, the absolute 
 command of the Army and Navy in such a 
 way that he may at any moment bring on a 
 war, limited only by the right of Congress 
 not to vote appropriations; the correspond- 
 ing right to make treaties; and the right to 
 veto legislation; — are all powers which the 
 King of England does not have. He shares 
 with the King of England the right to name 
 Ambassadors to foreign countries. He has 
 another power greater than the King of 
 England, however, in that he may form his 
 own cabinet. The King has his forced 
 upon him by a majority of the House of 
 Commons. Both King and President, when 
 they assume office, make oath that they will 
 support the Constitution. The King may 
 still dismiss Parliament, though he prac- 
 tically never does so without a vote of the 
 majority. Our President may not do so, 
 though he may convene Congress at any 
 time. Our President may be impeached. 
 The English King may still be deposed by 
 Parliament, and if they deem wise, put to 
 165
 
 THE AMERICAN CONSTITUTION 
 
 death. The general duty of both is to 
 execute the laws, though our President has 
 far more power in that particular than has 
 an English King. 
 
 It will be seen, therefore, that our Pres- 
 ident has, on the whole, during his term of 
 office, far greater powers than the English 
 Constitutional King. That was the reason 
 which led the founders to regard this part 
 of our Constitution with so much apprehen- 
 sion. And that was the reason which led 
 George Washington to decline election for 
 a third term, — an example which has been 
 followed by all our Presidents since his time. 
 
 i66
 
 VI 
 
 DIVISION OF POWERS BETWEEN LEGIS- 
 LATIVE, EXECUTIVE, AND JUDICIAL; 
 AND BETWEEN THE FEDERAL GOV- 
 ERNMENT AND THE STATES 
 
 ANALYSIS of the Constitution shows 
 . that it is largely composed of nega- 
 tives; that is, what the Federal Government 
 may not do, or what the States may not 
 do; powers that are kept by the people 
 in their own hands until they choose to 
 amend the Constitution. Contrary to the ^ 
 apparent impression, the things reserved to 
 the people are as many in number and 
 greater in importance than those delegated 
 to the Federal Power; and they can never 
 be lost to them but by amendment duly sub- 
 mitted to the people or to the States. The 
 people are the only judge of what are **the 
 people's rights and what are the people's 
 wrongs"; it is not for the Executive to 
 judge of the Constitution or what is "work- 
 167
 
 THE AMERICAN CONSTITUTION 
 
 ing for good government." Mr. Roosevelt, 
 in his life of Cromwell, criticises the Pro- 
 tector for doing this. "Unfortunately," he 
 says, *' Cromwell made the mental reserva- 
 tion that he should be himself the ultimate 
 judge of what good government was." 
 
 Of the powers of the several departments, 
 the Legislative is first in importance, but 
 the Executive, the President, has on the 
 whole distinctly more power than the King, 
 though for only a term of years. The feeling 
 that the President was given too great power 
 was very strong among the founders of the 
 United States, and for that reason Wash- 
 ington set the example of declining a third 
 term. I quote from Roosevelt's life of 
 Cromwell again, *'The plea that the safety 
 of the people and of the cause of righteous- 
 ness depended upon his unchecked control 
 is a plea always made in such cases, and 
 generally without any basis in fact. . . . 
 It was infinitely more essential to the salva- 
 tion of the nation that Lincoln should be 
 continued in power than it was to the sal- 
 vation of the Commonwealth in 1654 that 
 Cromwell should be continued in power. 
 Lincoln would have been far more excusable 
 168
 
 DIVISION OF POWERS 
 
 than Cromwell if he had insisted upon keep- 
 ing control, yet such a thought never entered 
 Lincoln's head. ... So he (Cromwell) lost 
 the right to stand with men like Washington 
 and Lincoln of modern times and with the 
 very few who, in some measure, approached 
 their standard in ancient times." 
 
 The Judicial branch has really no power 
 at all, in the sense of political power; its 
 sole great duty is to guard the Constitution 
 of the United States, to hold the balance 
 even between the Executive and the Con- 
 gress, or between the States and the Nation. 
 
 What is the exact division of all these 
 powers between the States and the Nation ? 
 .and what exactly is that group of most im- 
 portant matters which still remains reserved 
 to the people .? For this purpose it is possi- 
 ble to draw a chart which shall exactly show 
 the state of things at a glance (see Frontis- 
 piece.) Our whole sphere or circle will rep- 
 resent all possible powers of a free and 
 sovereign Nation, political, executive, legis- 
 lative. Zone "A" represents those powers 
 which are allowed to the Federal Govern- 
 ment, and zone "B," those powers which 
 are allowed to the States; where the two 
 169
 
 THE AMERICAN CONSTITUTION 
 
 zones cross, so that a small area is covered 
 by both, we shall have *'AB"; that is to 
 say, those powers which can be exercised 
 both by the States and by the Federal Gov- 
 ernment. There are many such in fact, — 
 notably the great realm of taxation — but 
 there is only one or two instances expressly 
 so stated in the Constitution. These blue 
 zones — "A" and *'B" — are all the powers 
 permitted to our Governments by the peo- 
 ple who set them up; and if our whole sphere 
 represents all possible legislative power, it is 
 perhaps a rough approximation to say that 
 these two zones "A" and *'B," what may 
 be done by the Nation and what may be 
 done by the States, represent the great bulk 
 of legislative power as it has been hitherto 
 understood in constitutional countries. It 
 does not, on the other hand, permit any 
 principle that is not republican in form, or 
 possibly anything destructive of private 
 property, liberty or the other natural rights. 
 All these matters, with the various political 
 powers that are withheld from the Federal 
 Government or from the States respectively, 
 will find a place in the opposite red zones, 
 "X" and "Z." Let us call what is for- 
 170
 
 DIVISION OF POWERS 
 
 bidden to the United States "X" and draw 
 that zone directly opposite to the zone of 
 things permitted to the United States. In 
 the same manner, let us call these things 
 which are forbidden to the States zone *'Z," 
 in the part of the circle opposite to zone 
 *'B." We shall again, in like manner as 
 before, have a certain section or realm 
 where the two zones "X" and "Z" cross, 
 and this part of our circle will exactly rep- 
 resent all those powers or things which are 
 forbidden both to the States and to the Na- 
 tion. Those powers, by inference, still re- 
 main with the people; but there are certain 
 other matters which are expressly reserved 
 to the people, which fall in the centre of our 
 circle "Y" — properly left white — that part 
 of the sphere of power which has not been 
 covered by any of our delegations of power 
 as we have drawn them on the chart. 
 
 Not only does this diagram show the 
 exact relation of all the powers at a glance, 
 but it well indicates still finer shades of 
 meaning. That is to say, the area marked 
 **A" simply represents those matters or pow- 
 ers delegated in the Federal Constitution to 
 the Federal Government, without anyexpres- 
 171
 
 THE AMERICAN CONSTITUTION 
 
 sion in the Constitution itself whether they 
 are for that reason forbidden to the States. 
 The Constitution is merely silent on that 
 point. This matter has been left, therefore, 
 to court decision and common sense. But 
 we have the other end of zone *' A," section 
 "AZ," where the zone of powers forbidden 
 to the States crosses that of the powers al- 
 lowed to the United States, so whatever we 
 put in this zone exactly represents those 
 powers which, in the Constitution, are dele- 
 gated by the people to the United States, 
 and at the same time expressly forbidden to 
 the States — this is the field of Centralization, 
 of Imperialism. And the same thing is true 
 of the powers permitted to the States or left 
 with them. There are some that are simply 
 permitted to the States, without more, " B," 
 and these may perhaps be exercised also by 
 the Federal Government. That has been 
 matter again for court decision and com- 
 mon sense. But the other end of zone *' B," 
 where the zone of things forbidden the 
 Federal Government crosses the zone of 
 things allowed to the States, we have divi- 
 sion *'BX," that is, powers which are left 
 with the States and expressly forbidden to 
 172
 
 DIVISION OF POWERS 
 
 the Federal Government. We have, there- 
 fore, nine grand divisions, and the central 
 one *' Y," represents most of what we were 
 talking of in our earlier lectures — the car- 
 dinal rights of the people. 
 
 Now just how, in fact, are all possible 
 powers of government or of legislation to 
 be divided under our Constitution .? This 
 is what the people call the study of States' 
 rights, and I think it is likely — so important 
 is it — to be the principal political issue of 
 the next century. We must not be preju- 
 diced against the term "States' rights," be- 
 cause we associate the use of the phrase 
 with secession; the States never had a right 
 to secede, for the States did not make the 
 Federal Government; the people did. The 
 constitutional falsity of the right to secede 
 was established by the War of the Rebellion. 
 Let us therefore approach the problem with- 
 out prejudice, in a fair and honest way, re- 
 membering both what our founders desired, 
 what their difficulties were, and what the 
 lesson of the past history of the English 
 people teaches us. Let us remember that to 
 deny a right to State or Nation because the 
 people wish to retain it to themselves is not 
 
 ^73
 
 THE AMERICAN CONSTITUTION 
 
 in the least a narrow or unpatriotic con- 
 ^^ struction of our Constitution. I have failed, 
 indeed, if I have not shown you that when 
 our ancestors made this Nation, they did it 
 with the express intent of not giving to the 
 government they were creating all powers 
 which have been enjoyed by other sovereign 
 _ governments. It was a wonderful and tre- 
 mendous experiment for that reason. They 
 desired to establish a republican form of 
 government; and they did not intend to 
 give to their government any royal or im- 
 perial powers, or any right to play the part 
 that had been played by conquering kings 
 in earlier centuries. To say, therefore, that 
 a power is denied to the Federal Govern- 
 ment, may merely mean that they held the 
 liberties of the people more sacred, and the 
 power itself dangerous; and probably in all 
 such cases the history of times past will jus- 
 tify it. For every one of the powers so re- 
 fused the Federal Government is a power 
 which, in the centuries behind us, has proved 
 dangerous to the liberties of the English 
 people when enjoyed by the King or a 
 centralized government. 
 
 Let us take up first what is permitted to 
 174
 
 DIVISION OF POWERS 
 
 the United States. We have necessarily in 
 part anticipated some of these matters in 
 our last chapter. What the people of the 
 United States delegated by their Constitu- 
 tion to the Federal Government in 1789 is 
 represented in our chart by zone **A"; and 
 that part of those powers which they gave 
 to the United States and at the same time 
 prohibited to the States, "AZ," represents 
 exactly the National powers of the American 
 Government. That is to say, only those 
 things which are both given to the Federal 
 Government and forbidden to the States or 
 to the people, are powers which the United 
 States really enjoys in its National sovereign 
 capacity. We will therefore take these first. 
 In this segment of a zone, "AZ," must lie 
 all the National powers which the Central 
 Government can constitutionally exercise. 
 Both Congress and President, to read their 
 title clear to anything they wish to do or 
 any law they wish to enact, have got to find 
 its authority given by the people in those 
 clauses of the Constitution which I shall now 
 enter in this section. Substantially all pow- 4^ 
 ers of legislation that are given Congress are 
 found in Section 8 of Article 1, and they 
 175
 
 THE AMERICAN CONSTITUTION 
 
 number 17. They are all, except three or 
 four, political powers; being the usual polit- 
 ical powers that are enjoyed by independent 
 and sovereign nations; although nothing is 
 expressly said about the acquisition of terri- 
 ■^ tory. Congress is given power to declare 
 war; and the annexation of territory must 
 be justified, under those three words, as a 
 necessary power resulting from the right to 
 make treaties of peace, which, of course, is 
 included in the right to declare war. A usual 
 consequence of treaties having been ac- 
 quisition of money or territory, our Supreme 
 Court has upheld the action of Congress in 
 . acquiring territory in this manner. 
 ^ Congress is given power to borrow money 
 -' on the credit of the United States; and 
 probably this must be done only for the 
 debts or needs of the United States, not, as 
 was recently done, in the interest of private 
 business. Congress only may establish an 
 uniform rule of naturalization, the making 
 of foreigners into citizens. It alone may 
 establish a national bankruptcy law. It 
 alone may coin money, regulate weights and 
 measures, and provide for counterfeiting. 
 It alone may establish post-offices and post 
 176
 
 DIVISION OF POWERS 
 
 roads, but probably only for the purposes of 
 post roads, not, as was recently proposed, to 
 use this as the entering wedge for the direct 
 control of the entire railroad system of the 
 United States. It may create monopolies 
 for new inventions or copyrights only, and 
 for a limited time. It may, at its own 
 pleasure, erect courts inferior to the Su- 
 preme Court, but necessarily always with 
 appeal to them, and the courts must always 
 proceed according to the common law, with 
 jury trial, and have the necessary judicial 
 powers of all courts; it is doubtful, there- 
 fore, whether their right of punishment for 
 contempt may be interfered with; Congress 
 may choose not to establish a court, but 
 when it has done so it must be a court in the 
 historical English sense, and not the amor- 
 phous creation of Congress. It may define 
 and punish piracies and felonies on the high 
 seas. It may provide and maintain a Navy, 
 though query whether a State may not do 
 so also. It may make rules for the govern- 
 ment of the Army and Navy, and for the 
 militia, but only when in the service of the 
 United States. It may exercise exclusive 
 legislation over the District of Columbia and 
 177
 
 THE AMERICAN CONSTITUTION 
 
 places purchased with the consent of the 
 State, in which the same shall be, for forts, 
 magazines, arsenals, dockyards and other 
 needful buildings. Without such consent or 
 for any other purpose, the United States 
 Government has no power to own, as a 
 private owner, one rood of land. Finally, it 
 alone may declare war. 
 
 And even all these powers are not given 
 without limitation. For instance, no army 
 can be supported by the Nation for more 
 than two years without a new vote of the 
 popular house of Congress. 
 
 Then we find here two or three other 
 most important powers which are not polit- 
 ical; greatest of all being the power to reg- 
 ulate commerce among the several States. 
 ISFearly all the increase of National power 
 over the people's affairs that is now con- 
 templated is based upon these four words. 
 If the extremists have their way, the In- 
 terstate Commerce power will become the 
 means of remodeling, utterly making over the 
 Constitution, obliterating its general great 
 division between political and social or do- 
 mestic powers or laws, and taking away the 
 ordinary business affairs of the people from 
 178
 
 DIVISION OF POWERS 
 
 their home courts and from State laws and 
 placing them with the political powers un- 
 der the control of the Federal Government. 
 This, therefore, is one of the two or three 
 principles that are going to be most important 
 for us, in the future, rightly to determine. 
 
 We next come to Clause i8, which has 
 been almost as much discussed as the Inter- 
 state Commerce Clause. This is the only 
 general grant, of legislative power to Con- 
 gress. All other matters are specific. But 
 at the end of all these specific powers, Con- 
 gress, by this clause, is given a general 
 authority *'To make all laws which shall be v 
 necessary and proper for carrying into execu- 
 tion the foregoing powers and all other pow- 
 ers vested by this Constitution in the United 
 States or any department or office thereof." 
 The extreme loose constructionists, the ex- 
 treme centralists, go to the length of saying 
 that under this section Congress can pass 
 any act which they consider either necessary 
 or proper for any of the purposes indicated 
 throughout the Federal Constitution; for 
 example, because Congress is given power 
 to regulate commerce among the several 
 States, they can, if they choose, forbid such 
 179
 
 THE AMERICAN CONSTITUTION 
 
 commerce entirely, or they could, on the 
 other hand, provide that all such commerce 
 must be conducted by Federal officers 
 licensed for the purpose, or by corporations 
 with a Federal charter. Or even that the 
 goods transported should be manufactured 
 under the Federal Government's notions of 
 what is right and wrong. The Democrats, 
 on the other hand, have always maintained 
 that these words "necessary and proper" 
 should be read as written. They mean both 
 necessary and proper; and of that necessity 
 not Congress which makes the law, but the 
 Courts shall judge. The Supreme Court in 
 its decisions has taken a middle ground. 
 While not holding that a law must be both 
 proper and necessary, they do hold that a 
 law must be proper in their sight, and also 
 reasonably adapted to the end proposed. 
 That is to say, if the courts can see on the 
 face of a law that although not the best 
 possible method, it is still a method fairly 
 applicable to the object proposed, they will 
 sustain the law under this power. 
 
 But now in all these matters also comes 
 another question, whether they should fall 
 in our class "A," or, as we have placed 
 1 80
 
 DIVISION OF POWERS 
 
 them, in our class '' hZ'' ? I have put them 
 all in *'AZ," although often, as with inter- 
 state commerce, it has been held that a 
 certain power of regulation is left with the 
 States, at least until Congress chooses to 
 interfere. When there is a National law on 
 the subject, the State law must give way; 
 and the same thing is, of course, true in the 
 matter of bankruptcies. Our State insol- 
 vency laws are suspended while and when 
 the Nation has a national bankruptcy act. 
 There is no doubt, however, that a State 
 cannot declare war, or regulate commerce 
 with foreign nations, or borrow money on 
 the credit of the United States, or establish 
 rules for naturalization, or coin money. We 
 conclude, therefore, that these seventeen leg- 
 islative powers given to Congress are usu- 
 ally exclusive; that is to say, they leave no 
 power with the States to legislate on those 
 subjects; certainly not, when Congress has 
 passed an act. 
 
 The next great subject of National power \e\ 
 is, of course, the Executive power generally 
 (II, 2). The Executive power of the United 
 States is vested in the President. In sub- 
 stance he has the power and the duty of 
 181
 
 THE AMERICAN CONSTITUTION 
 
 executing the laws; he appoints all National 
 officers; he is Commander-in-chief of the 
 Army and Navy; and he generally has the 
 powers of a constitutional British King ex- 
 cept in so far as those powers are taken 
 from him in other parts of the Constitution 
 and entrusted to other bodies. He cannot 
 declare war, but he may, with the consent 
 ^of two-thirds of the Senate, make a treaty. 
 And at this clause we find our first instance 
 of usurpation of powers by Congress or by 
 one branch of Congress. The President is 
 given power to make treaties, and the inten- 
 tion of the Constitution clearly is that that 
 power shall be full and merely be confirmed 
 by the Senate in the ordinary way that other 
 executive acts are confirmed. That is to 
 say, they have no business to interfere with 
 the President in his negotiations of a treaty, 
 and they ought to confirm it, when nego- 
 tiated, unless there is really some serious 
 objection. Nevertheless, the Senate has 
 taken it upon itself practically to arrogate 
 unto itself the whole right of treaty-making 
 power. You will remember that they dis- 
 approved a very important arbitration treaty 
 with England made by Secretary Hay; they 
 182
 
 DIVISION OF POWERS 
 
 have refused reciprocity treaties negotiated 
 under McKinley and others; they have op- 
 posed treaties about Newfoundland and 
 Canada; and they have assumed such an 
 attitude in relation to San Domingo as to 
 make it necessary for President Roosevelt 
 to go ahead alone. It is not too much to say 
 that it is almost impossible for a President, 
 however intelligent and patriotic, to get a 
 treaty confirmed against which a small body 
 of Senators have any objection. This, there- 
 fore, is a clear case of usurpation of con- 
 stitutional power by the Senate. 
 
 Substantially the only limitations on the 
 President's executive power are that he 
 may not prevent the Houses of Congress 
 from assembling, nor may he adjourn them 
 when assembled (but he has the power to 
 call them in special session); that he must 
 be a natural-born citizen; and that he must 
 make oath to support the Constitution of 
 the United States. Finally, he, with all other 
 civil officers, may be removed from office 
 by impeachment. 
 
 The judicial power of the Federal Gov- 
 ernment falls usually in our zone **AZ." 
 But there are many restrictions, in "X." 
 i8i
 
 THE AMERICAN CONSTITUTION 
 
 You remember how important a part this 
 was of the EngHsh Kings' prerogative, — how 
 the Norman Kings almost destroyed the 
 liberties of the people by removing the 
 judicial power from their own common law 
 courts and centralizing it with the Chancellor 
 or the King's Court at London, where cases 
 both civil and criminal could be, and in 
 j^ fact were, tried without a jury. Well, we 
 have protected against this latter danger 
 (Amendment VII) by providing that no case 
 removed to a Federal Court shall ever be 
 tried except under the common law, and we 
 have further provided (Art. Ill, 2) that the 
 trial of all crimes must be by jury and be 
 held in the State where the crimes were 
 committed, even if tried in a Federal court. 
 We have, however, given the National Courts 
 authority to determine all cases arising 
 under the Constitution or a Federal law 
 ("AZ"), and we have furthermore provided 
 that the Federal Courts may try all cases 
 "between citizens of different States" ("A" 
 or "AB"). Now these five words, like the 
 four words of the Interstate Commerce 
 Clause, have caused and are causing a 
 change in the relations of the Nation to the 
 184
 
 DIVISION OF POWERS 
 
 State, probably unforeseen by our ancestors. 
 In those days, suits between citizens of 
 different States were comparatively rare. 
 People's business rarely extended beyond 
 State lines. To-day it nearly always does, 
 even in the case of individuals. Moreover, 
 nowadays, the great bulk of the business of 
 the country is done by corporations; and 
 though corporations still, nearly all, work 
 under State charters, it by no means happens 
 that the charters are given in the State where 
 it does business. On the contrary, a busi- 
 ness corporation doing business in Boston 
 or New York is quite as likely to be a cor- 
 poration of the State of Maine, or West 
 Virginia, or New Jersey, as of the State 
 where it really is situated. The conse- 
 quence is that a vast mass of transactions, 
 and the great majority of business law suits 
 is growing to be between parties who are 
 technically of different States, and this state 
 of things has transferred the great bulk of 
 business from the State to the Federal 
 Courts. And if the President's proposal to 
 have all large corporations take out a Federal 
 charter were to pass into law, this would be 
 almost universal, and any dispute or busi- 
 185
 
 THE AMERICAN CONSTITUTION 
 
 ness involving a corporation — and nearly all 
 business would in fact be conducted by cor- 
 porations in such a case — would be removed 
 from the State Courts to be tried in the 
 Federal Courts. 
 
 Still, the Federal Government has no 
 power directly to interfere with the States 
 except if they fail to maintain a republican 
 form of government and except also (Art. 
 IV, Sec. i) that full faith and credit shall 
 be given in each State to the public Acts, 
 records, and judicial proceedings of every 
 other, and that Congress may pass laws 
 carrying this provision into effect (*'A"). 
 Finally, in Art. IV, Sec. 3, is the great 
 phrase on which the expansion of the Nation 
 is now proceeding. Congress has power to 
 admit new States into the Union ("AZ"), 
 though it may not alter the boundaries of 
 old States without their consent ("X" or 
 *'AB"), and in the same section Congress is 
 given power to make "all needful rules and 
 regulations respecting the territory or other 
 property belonging to the United States" 
 C'AZ"). On these two commandments 
 hang all the law and profits of imperialism. 
 Nothing is said about the territory from 
 186
 
 DIVISION OF POWERS 
 
 which new States may be admitted, and 
 there is no doubt that the founders, at least 
 in this section of the country, thouglit it 
 was Hmited to the territory acquired from 
 England in the Revolution. That notion 
 was disposed of by Thomas Jefferson in his 
 acquisition of Louisiana. Still it was per- 
 haps thought until recently that the power 
 to acquire new territory, certainly to make 
 new States out of it, was limited to the con- 
 tinental territory of North America. 
 
 Government of all such territory before 
 it is made into States is based on the second 
 clause of the Article, that Congress may 
 make needful rules concerning it. Whether 
 those "needful rules" include the withhold- 
 ing of the Constitution, or the administering 
 of the Constitution in such small doses as 
 it may deem healthy for the patient, is a 
 matter still in discussion, and not perhaps 
 yet settled. One portion of the Constitution 
 at least must " follow the flag" — the Thir- 
 teenth Amendment, for it says in so many 
 words that it applies to any place subject 
 to the jurisdiction of the United States. 
 
 So much for the Federal powers given to 
 the Federal Government in the Constitu- 
 187
 
 THE AMERICAN CONSTITUTION 
 
 tion and forbidden to the States. The great 
 Fourteenth Amendment, though, which was 
 passed after the Civil War, added one tre- 
 mendous principle. Passed in theory to 
 protect the negroes in the South, it practi- 
 cally gave a new bill of rights to all the citi- 
 zens of the United States and gave the Fed- 
 eral Government the power to prevent the 
 States from passing laws in contradiction 
 therewith. That is to say, while the States 
 already by their own Constitutions adopted 
 the cardinal principle of the Bill of Rights, 
 that life, liberty, or property could not be 
 taken away without due process of law, 
 by the Fourteenth Amendment the United 
 States Government was empowered also to 
 guarantee this to all United States citizens, 
 and even as against the States; so that the 
 people in their important liberty and prop- 
 erty rights have now not only the guaranty 
 of their own State Constitutions, as State 
 citizens, but of Section i of the Fourteenth 
 Amendment, as United States citizens, which 
 puts, as it were, the whole authority of the 
 Federal Government also behind the cardi- 
 nal proposition that no State shall deprive 
 any person of life, liberty, or property with-
 
 DIVISION OF POWERS 
 
 out due process of law, nor deny to any 
 person the equal protection of the laws. 
 
 The things forbidden to the States simply ^ 
 ("Z"), are generally those National political 
 powers which were reserved to the Nation 
 in our division "A," matters concerning na- 
 tional taxation, revenue, defence, and the 
 control of commerce among the States. The 
 States are forbidden (I, 2) to make their 
 elections for members of Congress less 
 popular than for the lower house of the 
 State Legislature. In the next clause they 
 are forbidden to elect to Congress a man 
 who has not been for seven years a citizen 
 of the United States; but the great clause 
 that goes into "Z" is Art. I, Sec. 10: No 
 State shall enter into any treaty, alliance, or 
 confederation, grant letters of marque, coin 
 money, issue paper money, etc., with the 
 same broad guaranties of human liberty, as 
 to bills of attainder, ex post facto laws, etc., 
 that we found forbidden also to the Federal 
 Government. Then, in the next clause, 
 they cannot lay duties on imports or exports 
 nor impose tonnage duties, nor keep troops 
 or ships of war, or engage in war un- 
 less actually attacked. They are forbid- 
 189
 
 THE AMERICAN CONSTITUTION 
 
 den (IV, i) not to give full credit to the 
 public acts and court decisions of other 
 States; and (Sec. 2), not to extend to the 
 citizens of other States all the privileges they 
 extend to their own citizens. Finally, there 
 are the great provisions of the Fourteenth 
 Amendment we have discussed above. 
 ^ Perhaps the next logical thing is to take 
 ^ what is forbidden to the United States. This 
 zone we mark " X '' — red, horizontal lines 
 — and it has the modifications of " BX," per- 
 mitted to the States and forbidden to the 
 Federal Government, and "ZX," forbidden 
 to both the States and the Federal Govern- 
 ment. Taking the plain restrictions first, 
 ■^ they have been somewhat anticipated. Per- 
 haps the greatest principle is the insistence 
 on a republican form of government (Art. 
 IV, 4). Art. I, Sec. 2, the House of Repre- 
 sentatives (corresponding to the House of 
 Commons in England) is to be chosen every 
 second year by the people of the States. In 
 the same section, third paragraph, is the ex- 
 traordinary withholding of the power of 
 direct taxes from the Federal Government. 
 This I have adverted to. Direct taxes being 
 most distinctly a sovereign power, their pro- 
 190
 
 DIVISION OF POWERS 
 
 hibition to the Federal Government shows 
 how httle of a sovereign the framers in- 
 tended that to be. Section 4 provides that 
 Congress must assemble at least once a 
 year, thus even oftener than the House of 
 Commons, which, in the time of Cromwell, 
 was established for three years, though it 
 actually now meets every year. 
 
 The usual constitutional privilege of free- 
 dom from arrest and freedom of debate is 
 extended in Section 6, and the members of 
 the Legislative body are forbidden from 
 holding salaried offices in the United States. 
 Section 7 copies the English constitutional 
 provision that money bills must be started 
 by the popular house; and here we find a 
 second great usurpation of our Upper House. 
 This clause of the Constitution intended to 
 adopt the English principle, founded and 
 fought for for many centuries, that taxation 
 bills should be made by the people through 
 their representatives and should only be in- 
 troduced in the Lower House, as in England, 
 they can only be introduced by the House of 
 Commons. Here, of late years, under the 
 fiction of amendments, the Senate has ar- 
 rogated to itself the lion's share of the 
 191
 
 THE AMERICAN CONSTITUTION 
 
 power of taxation and appropriation. Every 
 year there is a struggle on this point. 
 The House originates all appropriations in 
 what is called the General Appropriation 
 Bill. In the same way they originate all 
 tariff acts — the Wilson Tariff, for instance, 
 under Cleveland — but when such bills go 
 to the Senate they are amended and altered 
 to such an extent that the Senate might as 
 well strike out all but the enacting clause. 
 The greater power and discipline of the 
 Senate make this possible. The House is 
 ruled by majority vote, at least when the 
 Speaker permits it; but the Senate is prac- 
 tically ruled, that is, legislation may be 
 blocked by the will of one Senator; more- 
 over, the Senate has continuity, in that only 
 one-third of its members can change at 
 any Congress, while practically seats in the 
 Senate are held for life, except in rare in- 
 stances. So here we note another invasion 
 of constitutional right, this time again by 
 the Senate, on the will of the people as ex- 
 pressed in the Constitution. 
 
 Section 8 provides that taxes must be uni- 
 form. The Federal Government (Section 
 9) is forbidden to suspend the writ of habeas 
 192
 
 DIVISION OF POWERS 
 
 corpus, to pass bills of attainder, to impose 
 export taxes, and to prefer one port or the 
 ports of one State over those of another. 
 Money can only be paid out on appropria- 
 tions and expended for the purpose indicated, 
 and titles of nobility are forbidden. Article 
 III incorporates the great provision of the 
 English Constitution that judges must hold 
 their office during good behavior for a fixed 
 compensation. I told you how a Missouri 
 Congressman had introduced a bill that all 
 judges should be removable at the will of 
 the President. This would, of course, re- 
 quire an amendment to the Constitution, 
 and the people will be far too intelligent to 
 consent to it. Mr. Bryan, however, has 
 proposed that all Federal judges should be 
 elected and not appointed by the President. 
 The wisdom of this may be questioned. 
 Nominations by the people for judges or 
 minor offices have not, in our history, been 
 nearly so intelligent as their nominations for 
 the President. We have had very few Presi- 
 dents whose nomination of high judges we 
 might not trust rather than the chance of 
 political caucuses. And if Mr. Bryan pro- 
 poses to do away with the life tenure of Fed- 
 193
 
 THE AMERICAN CONSTITUTION 
 
 eral judges, he is striking at one of the most 
 valuable points of both the British and the 
 American Constitution, which, as you re- 
 member, was estabhshed only after many 
 centuries of struggle against James I and 
 Charles, in the Act of Settlement after the 
 English Revolution. The question of elec- 
 tion or appointment does not so much 
 matter; but a permanent tenure seems es- 
 sential. 
 
 To elect Federal judges, however, would 
 require an amendment to the Constitution, 
 and not only this, but it would be difficult 
 to provide the machinery. Are judges of 
 the Supreme Court, for instance, to be 
 elected by the whole people of the United 
 States and judges of the Circuit Courts by 
 the people of the representative circuits ? 
 This would require a whole machinery of 
 election which we have not now got. The 
 argument against appointment by the Pres- 
 ident, too, is based on a misconception. 
 Undoubtedly the President fairly represents 
 the will of the people for the time being; 
 and he has a perfect constitutional right to 
 designate judges of his own way of thinking. 
 I have sometimes in these lectures criticised 
 194
 
 DIVISION OF POWERS 
 
 presidents for interfering with the judiciary 
 or blaming their decisions, but one must 
 frankly recognize the necessity of appoint- 
 ing judges in accord with the prevailing 
 politics of the time. We have, for instance, 
 embarked on a national policy in connec- 
 tion with the Philippine Islands; whether 
 rightly or wrongly, the country is at present 
 committed to it. It would be perfectly im- 
 possible for any President to appoint a 
 judge of the Supreme Court who he thought 
 was likely to take a strict constitutional view 
 of the case and insist on extending habeas 
 corpus, indictments, trial by jury, and other 
 Anglo-Saxon safeguards to the people of the 
 Philippine Islands. The fact is, the weap- 
 ons of English liberty are meant to be worn 
 only by Anglo-Saxon peoples, including, of 
 course, the Scotch and Irish, and it is an 
 example of fantastic logic, than which noth- 
 ing can be more dangerous, to insist at once 
 on extending them to the brown or yellow 
 races under our dominion. 
 
 Section 2 forbids crimes to be tried other- 
 wise than by jury. Section 3 defines treason 
 as defined by the modern English Constitu- 
 tion. Art. V, no State shall ever be de- 
 '95
 
 THE AMERICAN CONSTITUTION 
 
 prived of its two senators, even by amend- 
 ment of the Constitution — this is the right of 
 rebeUion of which I spoke, both *'X" and 
 "XZ"— and Art. VI ("X" only) forbids 
 rehgious tests for office. 
 j^ The Amendments, being the National bill 
 of rights, mainly fall under the head we are 
 now discussing, plain *'X"; that is, they do 
 not control the States, which had their own 
 guarantees. The first nine apply only to the 
 Federal Government. Art. I guaranteeing 
 free religion; Art. II, the right to bear arms; 
 Art. Ill forbids the quartering of soldiers. 
 Art. IV forbids search warrants without 
 reasonable cause, and generally establishes 
 the right of a citizen to the privacy of his 
 own possessions. Art. V makes indict- 
 ments necessary for a man to be tried for 
 any crime; forbids his being tried twice for 
 the same offence, and forbids criminating 
 evidence — that is to say, compelling a man 
 to be a witness against himself. I shall dis- 
 cuss these two matters later. This impor- 
 tant article also incorporates in the Na- 
 tional Constitution the great clause of Mag- 
 na Charta, that no one shall be deprived of 
 life, liberty, or property without due process 
 196
 
 DIVISION OF POWERS 
 
 of law, and also that other section of Magna 
 Charta which forbids the taking of a man's 
 property for public purposes without just 
 compensation; and Art. VI requires a petit 
 jury for the actual trial of the crime, and 
 requires that no person shall be detained 
 without being told why — this last being the 
 right to law which I spoke of in my first 
 lecture. Art. VII requires jury trial in 
 civil cases. Art. VIII forbids excessive bail 
 and cruel punishments. The eleventh article 
 of amendment forbids suits against a sover- 
 eign State. The thirteenth abolishes slav- 
 ery. The fourteenth establishes the right 
 of all United States citizens to equal treat- 
 ment by the States, despite their race or 
 color. 
 
 I have reserved the most important to the 
 last. This is the tenth. "The powers not 
 delegated to the United States by the Con- 
 stitution, nor prohibited by it to the States, 
 are reserved to the States respectively or to 
 the people." This is the great area of *' Y," 
 we have left white — virgin still, with the 
 people. And this is the only part of the 
 Constitution covering infinite, indefinite, po- 
 litical power — the rights, powers and liber- 
 
 197
 
 A 
 
 THE AMERICAN CONSTITUTION 
 
 ties reserved to the people and to their 
 home governments. 
 
 It will be seen from this brief survey 
 that I was justified in saying at the begin- 
 ning that the Constitution, in so far as it 
 affected the Federal Government, consisted 
 mainly of restrictions; while comparatively 
 few restrictions are imposed upon the States 
 — the general theory being that they have 
 all legislative powers of ordinary republics. 
 
 And let us also see what things are for- 
 bidden to both States and Nation — "XZ" — 
 as this is most significant; moreover, such 
 matters, though the Constitution does not 
 expressly say so, must fall, with their ex- 
 pressly reserved liberties, in the people's 
 domain, *'Y." Mainly these consist in the 
 cardinal liberty rights — life, liberty, prop- 
 erty, free religion (Amendments 5, 13, 14), 
 etc., also the prohibition of titles of nobility, 
 of bills of attainder, and the insistence on 
 a republican form of government by both 
 the Nation and the State, elections of the 
 House by the people (I, 2), the assurance 
 of equal rights by law (Amendments 5 and 
 14), and the right to vote (Amendment 
 
 15)- 
 
 198
 
 DIVISION OF POWERS 
 
 We now come to our zone of "B" — 
 States' Rights. Very few things have to be 
 given expressly to the States, because the 
 general theory is that they have all powers 
 not expressly parted with. They are ex- 
 pressly given control over their militia. 
 They are given power to demand extradition 
 of criminals from other States; they are 
 guaranteed their territorial integrity; they 
 are protected against law-suits. 
 
 Then, in the division " BX," given to the 
 States and forbidden to the Nation, we have 
 the Constitution's own definition of States' 
 Rights; the States are expressly, by the 
 Tenth Amendment, given all powers not 
 expressly delegated to the Federal Govern- 
 ment in the Constitution. This is the great 
 right reserved, and has been fully discussed 
 already — that there is nothing in the whole 
 body of political power which does not be- 
 long to States' Rights unless it is expressly 
 delegated to the Federal Government in the 
 Constitution itself. This provision is so 
 broad that it is hardly necessary for the 
 Constitution to say more. It does, how- 
 ever, expressly give a few things to the 
 States and forbids them to the Nation. For 
 199
 
 THE AMERICAN CONSTITUTION 
 
 instance (I, 2), the right to elect members 
 of the House of Representatives by the 
 people of the States and to have a number 
 of representatives proportionate to their 
 population; the right of State Governments 
 to issue writs for elections to fill vacancies; 
 (Art. I, Sec. 3) the right to have two Senators 
 from each State chosen by the Legislature 
 thereof, each senator to have one vote; and 
 in the next clause the right of the Governor 
 to appoint senators to fill vacancies; (Art. 
 I, Sec. 4) the right to manage, control and 
 fix the times and places of their own elec- 
 tions, even for United States Senators; (I, 
 8, 16) the right to appoint the oflficers of their 
 own militia; (II, i, 2) the right to appoint 
 electors for the United States President 
 even, in such manner as the State Legis- 
 lature direct, not to be controlled by the 
 Federal Government. They can be ap- 
 pointed, either by election throughout the 
 State as a whole, or by election in districts, 
 or even directly by the State Legislature it 
 would seem, though the last has never been 
 done. But Michigan and other States have 
 had elections by districts. 
 
 The chief matter which is common to 
 200
 
 DIVISION OK POWER 
 
 both the State and Nation ("AB") is that 
 of taxation, jurisdiction of ordinary law- 
 suits, and the forming of new States. States 
 and Nation (IV, 4) may combine to repress 
 domestic violence. They have to combine 
 to amend the Constitution (Art. V), and 
 (IV, 3, i) to alter State boundaries. Other- 
 wise there is no overlapping, and, despite 
 the President's opinion, no gaps —save the 
 great gap of imperial power and personal 
 liberty reserved in the people. 
 
 For, finally, after we have divided all these 
 powers in these eight divisions, we have in 
 the centre that space unoccupied which 
 perfectly represents those powers which re- 
 main in the people, which they have never 
 granted to our Federal Government, or 
 even, in many cases, to the States; rights 
 still virgin. This great domain I have al- 
 ready anticipated. Indeed it was the sub- 
 ject of most of our early lectures: liberty, 
 property, equality, the right to law, habeas 
 corpus, trial by jury, local self-government, 
 popular election, general suffrage. All these 
 fundamental things would fall into that 
 division. To say more here would be to 
 repeat the first five lectures. 
 201
 
 THE AMERICAN CONSTITUTION 
 
 '^ But there are other, more poHtical, 
 rights given to protect the people. Con- 
 gress must assemble every year; it must 
 have freedom of speech and guaranty against 
 arrest; the House alone can introduce rev- 
 enue bills. No armies can be maintained 
 for more than tv^o years. No direct taxa- 
 tion from the National Government; no un- 
 equal indirect taxation from the National 
 Government. No titles of nobility. Jury 
 trials; indictments; civil rights; the for- 
 bidding of all class legislation; the suprem- 
 acy of the Constitution. And, finally, after 
 all these rights have been enumerated, the 
 great Ninth Amendment says that this enu- 
 meration, nevertheless, does not deny or 
 disparage other rights still retained by the 
 people; the final and important thing being 
 that the framers founding this Government 
 consciously and expressly did not intend to 
 give general sovereign powers of conquest 
 or National career. Their Government was, 
 in theory, a committee, bound to report to 
 its masters every two years. This whole 
 sphere in our diagram represents, in a sense, 
 infinity of powers; but the real infinity is in 
 the central sphere of *'Y." All the other 
 
 202
 
 DIVISION OK POWER 
 
 divisions are definitely limited and definitely 
 controlled. Failure to understand this is 
 failure to understand the cardinal principle 
 of our Constitution. 
 
 203
 
 VII 
 
 CHANGES IN THE CONSTITUTION NOW 
 PROPOSED 
 
 WE have but two remaining lectures in 
 which to fulfil our promise of con- 
 sidering those subjects of the American Con- 
 stitution which are likely to bulk most 
 largely in the popular mind in the imme- 
 diate future. First, we will take the regula- 
 tion or control of corporations. By an acci- 
 dent of legislation or policy, the Act estab- 
 lishing the Department of Commerce and 
 Labor authorizes the Commissioner to make 
 investigations ... of the business of any 
 (not every or all) corporation engaged in 
 interstate commerce; and by an Act of 
 February 25, 1903, ^500,000 was appro- 
 priated to enable the Attorney-General to 
 conduct prosecutions under the same. Now 
 the question of compulsory evidence, pub- 
 licity of business corporations, and the im- 
 munity of those testifying in such matters, 
 204.
 
 CHANGES IN THE CONSTITUTION 
 
 is one thing; the right of a man to keep his 
 private affairs private, to have his private 
 papers sacred, and his house and posses- 
 sions inviolable, is quite another, a valued 
 liberty right, won in comparatively modern 
 times against the Stuart tyranny. Indeed 
 one of these rights — that a man's house and 
 papers should not be searched without a 
 special warrant stating the cause — was, we 
 may say, invented in Massachusetts. The 
 Writs of Assistance, which allowed general 
 perquisition, were a great abuse at the time 
 that General Gage was stationed in Boston. 
 In an impassioned speech, James Otis ob- 
 jected to them, asserting that they were 
 against English constitutional principles. 
 He won his case; and the same thing was 
 afterwards decided in England by Lord 
 Camden. The broader principle, much 
 older, that a man should not be compelled 
 to testify against himself, is a very corner- 
 stone of English liberty. It is far too pre- 
 cious to part with, but it has undoubtedly 
 been much abused by the trust magnates 
 and other powerful persons who were en- 
 deavoring to evade our Federal laws. Now 
 we had several Acts of Congress which re- 
 205
 
 THE AMERICAN CONSTITUTION 
 
 quired trusts and their officers, at the re- 
 quest of the Commissioner of Corporations, 
 to make reports to the Government and 
 show their books. They hastened to do so 
 when required. It necessarily resuked from 
 the fact that they acted under Government 
 compulsion, that they were immune from 
 prosecution for anything revealed by the 
 books and documents delivered. This re- 
 sult was doubtless a great disappointment 
 to the President and a great miscarriage of 
 justice. Nevertheless, it might easily have 
 been avoided by drawing the statute or 
 conducting the prosecution so as to require 
 only the secretary or other subordinate 
 officer having possession of the books to 
 produce them, thus leaving the real heads 
 of the objectionable trusts open to prosecu- 
 tion. There can be little question that 
 Judge Humphrey's decision on this point 
 was perfectly right. 
 
 As a result ofthis Beef Trust decision, how- 
 ever, Attorney-General Moody promptly in- 
 troduced a bill into Congress giving the Gov- 
 ernment the right to appeal on a ruling of 
 law in criminal cases, and this brings us 
 naturally to the next thing I want to discuss, 
 206
 
 CHANGES IN THE CONSTITUTION 
 
 the riglit of not being ** twice in jeopardy." 
 We have seen that one of our constitutional 
 Hberties is expressed by these words, that 
 no man shall be twice put in jeopardy of his 
 life or liberty for the same offence. That is 
 to say, he is not to be tried twice. From 
 this early English principle grew, in many 
 of our States, the notion that a man was 
 tried twice when the Government had a 
 right to appeal the case to a higher court. 
 Now this really is a misconception of the 
 constitutional principle. No man is twice 
 in jeopardy unless he has been tried twice 
 by a jury — the reason for this being that 
 under Anglo-Saxon ideas no Judge, no King, 
 but only twelve lawful men of the neighbor- 
 hood can take a man's life or liberty away; 
 but when a man has been tried before a 
 jury and acquitted on a ruling of law which 
 was wrong, and it is possible that the jury 
 would not have acquitted him had the ruling 
 been otherwise, there is no reason why that 
 ruling of law should not be reviewed. It 
 would be better, probably, to ha\'e the case 
 at once suspended when the ruling of law is 
 excepted to, so that no jury is in fact brought 
 in on the first trial. The bill drawn, I bc- 
 207
 
 THE AMERICAN CONSTITUTION 
 
 lieve, by Mr. Moody was promptly (March 
 2, 1907) enacted, and is simply in line with 
 the rule that prevails in about half our 
 States. There is nothing radical or revolu- 
 tionary in this, and in the future the Govern- 
 ment will have the right to appeal from any 
 ruling of law that it is not satisfied with. 
 Indeed, I only wish this Act had been in 
 force at the time that Judge Humphrey 
 made his celebrated decision in the Beef 
 Trust case. It might have saved a member 
 of the judicial branch a severe written cen- 
 sure addressed by the Chief Executive to 
 the House of Congress, for which we can 
 hardly go back for a precedent to the time 
 when Thomas Jefferson said of Chief-Jus- 
 tice Marshall's decision against the State of 
 Georgia: "Well, John Marshall has made 
 that decision — Now let John Marshall en- 
 force it." 
 
 The next thing in the Constitution that is 
 a great issue to-day is Art. I, Sec. 3, requir- 
 ing the Senate to be chosen by the Legisla- 
 ture of each State. Nearly every State in 
 the Union, and both parties in more than 
 one, have adopted resolutions for an amend- 
 ment of this part of the Constitution, re- 
 208
 
 CHANGES liN llIK CONS 111 UTION 
 
 quiring Senators to be elected by popular 
 vote. This stands in the National platform 
 of the Democratic party, and even in the 
 platform of the Republican party in several 
 States; but if the people really desire it, it 
 is not necessary to amend the Constitution 
 to effect this reform. All they have to do 
 is to provide for an expression of popular 
 preference at the polls, just as they do now 
 when electing a President. As you know, 
 we do not elect Presidents directly; we only 
 vote for the electors, but those electors are 
 pledged to a certain presidential candidate. 
 In the same way it is perfectly easy to pr(j- 
 vide by State statute that the people may 
 be allowed to express their preference for 
 United States Senator at the polls, and then 
 the legislature which they elect will hardly 
 dare go against their expressed will. Sub- 
 stantially this system has been adopted in 
 Oklahoma, in Wisconsin, I think, and in 
 several other States, and if the parties are 
 really in earnest about it they can do it in 
 Massachusetts next winter. 
 
 Our third point of discussion is Art. I, 
 Sec. 5: each House shall be the judge of 
 the election, returns, and qualifications of its 
 209
 
 THE AMERICAN CONSTITUTION 
 
 own members. Under that section, mem- 
 bers of Congress are, as you know, fre- 
 quently unseated, though they have an ap- 
 parent popular majority; especially when 
 they belong to the minority party at Wash- 
 ington. Senator Smoot of Oregon was very 
 nearly turned out of the Senate, not for lack 
 of votes, but for lack of moral qualifications 
 for a seat in that fastidious body; the oppo- 
 site principle was vindicated in England 
 more than one hundred years ago in the 
 famous Wilkes case. There is no doubt, 
 however, that the power ought to lie in 
 Congress, except in the case of a mere ques- 
 tion of numbers of votes, when it might 
 fairly be referred to the Courts. Such has 
 been the history of this matter in England. 
 The power of the House of Commons to 
 judge of its own elections, returns, and quali- 
 fications was early vindicated as against the 
 Crown, but in modern times they have of 
 their own will adopted a judicial procedure. 
 Art. I, Sec. 7, that bills for raising revenue 
 shall originate in the House, I have spoken 
 of elsewhere. This provision of the Con- 
 stitution should be observed in spirit as well 
 as in letter. Art. I, Sec. 9, Clause 4— the 
 210
 
 CHANGES IN THE CONSTITUTION 
 
 Democratic party is apparently committed 
 to an amendment of this section so that 
 Congress shall be allowed to impose direct 
 taxes, or at least income taxes, which the 
 Supreme Court has recently held to be 
 direct within the meaning of the Constitu- 
 tion. This is a matter of which the people 
 should judge. There was a fear in early 
 times that the poor States might tax the rich 
 States if this clause of the Constitution were 
 not put in. If that fear has departed, the 
 Constitution should be so amended. I 
 doubt, however, whether such an amend- 
 ment would be agreed to by three-fourths 
 of the States. Under present tendencies, 
 that very fact is argued to be a reason for 
 straining or stretching the Constitution with- 
 out amending it; but such a notion, though 
 held by individuals, has not yet formally 
 been adopted by either of the great political 
 parties. Then of the proposal to tax out of 
 existence, either by income or succession 
 tax, "swollen fortunes." This brings up 
 again the great question which lies before 
 us. Is it the function or province of the 
 Federal Government to step between the 
 individual and his property, to regulate the 
 
 21 I
 
 THE AMERICAN CONSTITUTION 
 
 private affairs of all men in that most im- 
 portant part of them which concerns their 
 fortunes ? There can be no question but 
 that every member of the Constitutional 
 Convention of 1787, not excepting the cele- 
 brated Judge Wilson, recently resurrected 
 by the President, would have earnestly an- 
 swered in the negative. Not the wildest 
 Federalist ever dreamed of putting in the 
 power of the Federal Government the con- 
 trol of his domestic affairs. The Federal 
 Government has not, except at sea or in the 
 army, that cardinal power of a Sovereign 
 Government — to inflict the death penalty 
 for crimes, other than treason. All that 
 even Hamilton aimed at was to make the 
 National Government strong, supported and 
 authoritative at home, and respected abroad. 
 But he, as much as Thomas Jefferson, un- 
 derstood that it was to be purely political. 
 The Government has power to raise revenue 
 for the National defence and the general wel- 
 fare, and an inheritance tax imposed for 
 that purpose has been held constitutional 
 by the Supreme Court; but a tax which on 
 its face was aimed not at raising necessary 
 revenue but at diminishing or destroying 
 212
 
 CHANGES IN THE CONSTITUTION 
 
 large private fortunes would be unconstitu- 
 tional, and for this statement I have very 
 high authority. If, under the Interstate 
 Commerce clause, the Federal Government 
 is to control, not only commerce itself, but 
 the persons who conduct it and the fortunes 
 which are in part derived from it, it may 
 as well control the marriages of the parties 
 thereby enriched and the legacies they may 
 leave to their children. There is no bound or 
 limit to this path short of absolute control by 
 Congress of the people and all their domes- 
 tic affairs. The fact must never be lost 
 sight of that the framers of the Constitution, 
 as clearly as the English language could ex- 
 press it, sought to deny to the Federal Gov- 
 ernment any power of direct taxation of the 
 people. It is almost by a fiction of law, by 
 what was at the time regarded as a dubi- 
 ous decision of the Supreme Courts of 
 Massachusetts and the United States that 
 a tax on inheritances was held not to be 
 a direct tax. The law now so stands; but 
 the spirit of the Constitution is against it. 
 
 Art. I, Sec. 8, Clause 3 (to regulate com- 
 merce among the several States), and Art. 
 I, Sec. 9, Clause 6 (no preference shall be 
 213
 
 THE AMERICAN CONSTITUTION 
 
 given by any regulation of commerce to 
 the ports of one State). The great railway 
 regulation bill, secured by the President last 
 year, has been in effect too short a time yet 
 for us to judge of its results. As to its con- 
 stitutionality, it is still argued that it has 
 two or three fatal defects. First, that it is 
 a delegation of legislative power to an ad- 
 ministrative board, and, as such, uncon- 
 stitutional, or else that it clothes an admin- 
 istrative board with judicial power, which 
 is equally so; second, that it takes away a 
 man's property or the property of railroad 
 corporations without due process of law. 
 This is probably cured by the broad court 
 review provision which was inserted by 
 Senators Knox and Foraker against the 
 opinion of the Administration. Third, pos- 
 sibly, that it is in effect a preference given 
 by a regulation of commerce to the ports of 
 one State over those of another. But on 
 the broad principle whether the Constitu- 
 tion in the Interstate Commerce clause con- 
 templates any such power, a word or two is 
 necessary. We have sufficiently pointed 
 out that the intent of the Constitution is to 
 make commerce among the States free and 
 214
 
 CHANGES IN THE CONSTITUTION 
 
 unhampered by anybody. If the words 
 they have chosen have nulHfied such intent, 
 it is at least to be noted that the conclusion 
 will carry us very far. Not only under it may 
 they as well regulate charges, and hence prob- 
 ably the profits, to be derived from commerce 
 with the Indian tribes, but there would seem 
 no reason to say that they may not do the 
 same as to commerce with foreign nations; 
 and, although we think of the railway rate 
 regulation law as applying only to corpora- 
 tions, we are by no means limited to that 
 conclusion if the foundation of the present 
 law is valid, for it rests not on the power to 
 regulate corporations — at present the Fed- 
 eral Government has none — but on the 
 power to regulate commerce among the sev- 
 eral States. It can regulate that commerce 
 quite as well when done by individuals as 
 when done by corporations. Therefore, if 
 the principle of the Hepburn Act is valid, 
 all the charges and profits made by individ- 
 uals engaged in any interstate commerce 
 may be delimitated, regulated or controlled 
 by Congress. Not only that, but the form 
 and law of the bills of exchange and the 
 bills of lading whereby such commerce is 
 215
 
 THE AMERICAN CONSTITUTION 
 
 carried on — this, indeed, possibly would not 
 be denied — but the interest to be charged 
 upon such bills of exchange as well. And 
 when we apply this principle to commerce 
 with foreign nations (and the power must 
 apply to one if it applies to the other) we are 
 met with the tremendous consequence that 
 Congress may prescribe all freight or pas- 
 senger rates of vessels doing business with 
 foreign ports, the laws and conditions under 
 which they shall do such business, and, 
 though it cannot indeed enforce such laws 
 directly, it may lay an embargo on all such 
 commerce when the laws are not observed. 
 Then as to the goods themselves, which 
 may be a proper subject of interstate com- 
 merce. It is now proposed to exclude goods 
 which are not manufactured or produced in 
 conformity with a national labor law; but 
 the most radical abolitionist in the times 
 before the Civil War never proposed to 
 destroy the institution of slavery by exclud- 
 ing the cotton or sugar or rice grown in 
 whole or in part by slave labor from any 
 transportation across State lines. Charles 
 Sumner and other abolitionist lawyers were 
 dull and uninventive. It is too bad that it 
 
 2l6
 
 CHANGES IN THE CONSTITUTION 
 
 was so, because otherwise the Civil War 
 might have been avoided. 
 
 Then as to the economic side of the ques- 
 tion. It is argued that it will make rates in- 
 elastic, will arrest the growth of business, 
 and will give a preference to certain ports 
 or certain sections contrary to this provision 
 of the Constitution. It is too early, in my 
 opinion, to judge of any of these things. I 
 will, however, mention one significant event, 
 while reminding you of what I said of the 
 evil effects of interposing boards or commis- 
 sions between the people and their common- 
 law rights. The first decision under the 
 railway rate regulation bill was one arising 
 from the State of Texas, where certain Texas 
 merchants brought suit in the State Courts 
 under the very strict railroad law of Texas, 
 claiming discrimination in the rates charged 
 to the Standard Oil Company as against 
 other companies, and also, I think, extor- 
 tion in the rates for cotton. The complain- 
 ing merchants won their case in the State of 
 Texas; but it was removed from the highest 
 court of Texas to the United States Su- 
 preme Court, which reversed the Texas de- 
 cision on the ground that the railroads 
 217
 
 THE AMERICAN CONSTITUTION 
 
 having filed schedules under the national 
 railway rate regulation bill, the courts of 
 Texas were powerless, the laws of Texas 
 ceased to apply, and the people of Texas 
 could no longer enforce their own law reme- 
 dies, or even the common law. All control 
 of commerce was taken from "A" and 
 placed in "AZ." Whatever the extortion or 
 discrimination, they must wait until they 
 could get a ruling from the Interstate Com- 
 merce Commission, with ultimate appeal 
 only to the Supreme Court at Washington. 
 And in the long run such rulings will neces- 
 sarily tend to a uniform mileage rate, not 
 lower than the poorer railroads can afford. 
 The Hepburn law will be, in my opinion, 
 a very good thing for the railroads but will 
 disappoint the expectations of the people 
 and prove an obstacle to the settlement of 
 new localities or the founding of new in- 
 dustries. 
 
 This naturally brings us to almost the 
 greatest principle of all, that we are in dan- 
 ger of forgetting — the importance of careful 
 division of the powers. The two rocks 
 ahead of us, in my opinion, are that the 
 people may come to forget the importance 
 218
 
 CHANGES IN THE CONSTITUTION 
 
 of separating the Executive from the Legisla- 
 tive, and that tliey may come to forget the 
 importance of separating those powers which 
 belong to the Nation from those which re- 
 main with the States or even are reserved 
 to the people. "Render unto Caesar those 
 things that are Caesar's." This railway rate 
 regulation bill is the first tremendous exam- 
 ple of it, perhaps, in National affairs; though 
 before that there was the old Interstate Com- 
 merce Commission, and there is the Bureau 
 of Corporations. I shall say something of 
 the latter later. But in the States, as you 
 know, there has been a tremendous duplica- 
 tion of Boards and Commissions and Com- 
 mittees, all charged with matters of legisla- 
 tion which should belong to the Legislature, 
 or with matters of judgment or administra- 
 tion which should belong to the Courts, or 
 to the ordinary servants of the people. 
 Nearly all these Boards are in effect law- 
 makers, judges and juries in their own 
 affairs; and though there is sometimes in 
 theory an appeal from them to the courts, 
 it is almost impossible for an ordinary man 
 who has a grievance to get beyond the 
 Board or Commission if it decide against 
 219
 
 THE AMERICAN CONSTITUTION 
 
 him. I am not saying that they do not do 
 some good work, but I say the principle is 
 bad, and should be watched carefully. The 
 constitutional rights of a man almost disap- 
 pear before such a Board or Commission; 
 as they do before a military court in the 
 Army, or indeed before any administrative 
 officer clothed with unchecked power. 
 
 Coming from the question of division of 
 powers to that of so-called usurpation, 
 though the word aggrandizement would 
 perhaps more fairly express it, we have 
 noted that that most feared by Thomas 
 Jefferson, usurpation by the judicial branch 
 of Government, has not proved a serious 
 danger; but each of the other branches, as 
 well as each branch of Congress, has shown 
 a tendency, and is now showing a tendency, 
 to exaggerate its powers at the expense of 
 constitutional principles. The interference 
 by the Senate with treaties has already been 
 discussed, as well as the way that it has 
 taken unto itself the shaping of measures 
 of revenue or taxation. So, also, its misin- 
 terpretation of its right of confirming Presi- 
 dential appointments. But the House is by 
 no means guiltless in this last matter. It 
 
 220
 
 CHANGES IN THE CONSTI'lUTION 
 
 has grown to be the custom, so that it has 
 recently been claimed by a Massachusetts 
 Congressman to be the unwritten law, that 
 a large number of Federal officers are in 
 effect to be appointed by members of Con- 
 gress. Art. II, Sec. 2 of the Constitu- 
 tion says only that "the President shall 
 nominate and by and with the advice and 
 consent of the Senate . . . shall appoint 
 ... all other officers of the United States 
 whose appointments are not herein other- 
 wise provided for." They are to be con- 
 firmed by the Senate; but it is clear that 
 the Constitution intends that members of 
 the Lower House shall have nothing to do 
 with the matter; and the enlightened view 
 of the situation would lead Congressmen 
 to desire this themselves. They gain noth- 
 ing from the present custom, not even in 
 political power; while they incur the danger 
 of making many enemies, and the loss to the 
 American people of a large part of their 
 valuable time. 
 
 The aggrandizement of the Executive 
 power is one that we have traced so care- 
 fully through English history and spoken 
 of so often in earlier lectures that there 
 
 221
 
 THE AMERICAN CONSTITUTION 
 
 seems to be now but a word or two to add. 
 The notion that the President should not 
 endeavor to impose his poHcies on Congress 
 prevails now very largely with that body. 
 Indeed, you will remember what Speaker 
 Onslow said to the effect that a rumor run- 
 neth about the House, take care what ye 
 do with this bill; it liketh not the King. 
 Take care what ye do as to that other. It 
 pleaseth the King's Majesty; and he con- 
 signed such notions to be buried in Hell — 
 in the emphatic language of that day; but 
 Section 3 of the Article of our Constitution 
 concerning the President's duties says that 
 *' He shall from time to time give to the Con- 
 gress information of the state of the Union 
 and recommend to their consideration such 
 measures as he shall judge necessary and 
 expedient." Our President is, therefore, 
 quite within his constitutional rights in so 
 doing, though it is the last thing that would 
 now be attempted by the British King. 
 
 The only express change in the Constitu- 
 tion now seriously proposed is that for the 
 repeal of the Fifteenth, and possibly even 
 the Fourteenth, Amendment. The Fif- 
 teenth Amendment, you remember, is the 
 222
 
 CHANGES IN THE CONSTITUTION 
 
 one which gave the negroes the right to 
 vote. The Fourteenth Amendment is one 
 which was aimed at giving the negroes civil 
 rights; and also at guaranteeing certain 
 cardinal rights to all United States citizens, 
 even against the laws of the States. It was, 
 therefore, the first direct interference of the 
 Federal Government with the condition of 
 the people, their property and civic rights. 
 In a sense, therefore, this is an anti-States' 
 Rights measure. In fact the last three 
 amendments are all somewhat of this na- 
 ture; which shows that it is not true that, if 
 the people really desire an amendment in- 
 creasing the Federal power and taking away 
 rights which before that belonged to the 
 States, there is any difficulty in doing so. 
 It has been done no less than three times in 
 the last forty years. This reactionary pro- 
 posal, however, seems to have been lost 
 sight of in the last year or two; whether or 
 not it is ''practical politics," I personally 
 can see no reason for the repeal of either 
 amendment. 
 
 Last of all, we come to the one now most 
 discussed. Interstate Commerce — how far 
 do the powers of the Federal Government 
 223
 
 THE AMERICAN CONSTITUTION 
 
 extend ? Labor, health, marriage, divorce 
 — should the Federal power be extended 
 also to these fields ? To this question and 
 the regulation of corporations generally, we 
 shall devote our last lecture. 
 
 We may, however, dispose of labor laws, 
 marriage laws and the like in a few words. 
 There is no general desire on the part of the 
 States for uniform, still less Federal, laws in 
 these important social and domestic affairs. 
 For fifteen years the writer served as Com- 
 'missioner for Massachusetts upon National 
 Uniformity of Law, meeting each year simi- 
 lar commissions appointed under the laws 
 of nearly all the other States. There is no 
 general desire for enforced uniformity on 
 these subjects throughout the Union. Cli- 
 mate, conditions, races, religions vary too 
 widely in our great country. The National 
 Conference of State Uniformity Commis- 
 sions had little trouble in getting its uniform 
 law on Bills and Notes adopted throughout 
 the Union; it has made no progress in labor 
 or marriage legislation except the doing 
 away with the "common law" marriage in 
 New York and a certain reform in divorce 
 procedure. The causes lie too deep. In 
 224
 
 CHANGES IN THE CONSTITUTION 
 
 1895 Massachusetts instructed her Com- 
 missioners to bring before the National Con- 
 ference the question of uniform hours-of- 
 labor laws. The conference that year was 
 at Detroit, and the writer, acting as chair- 
 man, had the request of the legislature of 
 Massachusetts introduced from the floor. 
 Before the reading was half over, two-thirds 
 of the delegates were up in angry disap- 
 proval; a rebuff to our State was only 
 avoided by having the matter smothered in 
 committee. 
 
 Uniformity is hopeless on these points — 
 nor is it wise. The Southern marriage laws 
 are aimed to protect the young girl against 
 dishonor; the Northern follow rather the 
 European view of protecting the man, or the 
 legitimate wife, against the adventuress. 
 Half the States think a marriage a mere 
 contract; others hold to the view that it is a 
 status, or a sacrament of the church. In 
 labor legislation there is even less desire for 
 national laws. What little there is is fos- 
 tered partly by the labor unions, but mainly 
 by Northern manufacturers. In my ex- 
 perience you will not get six States to vote 
 for a uniform law on causes for divorce, nor 
 225
 
 THE AMERICAN CONSTITUTION 
 
 six for a nine-hour day in factories. But if 
 they will not do it by voluntary legislation 
 of their own, how absurd to suppose they 
 will accept Federal compulsion by a con- 
 stitutional amendment — or submit to the 
 strained construction whereby the President 
 urges those powers **must be found"! 
 
 226
 
 VIII 
 
 INTERSTATE COMMERCE, THE CONTROL 
 OF TRUSTS, AND THE REGULATION 
 OF CORPORATIONS 
 
 THE right to ''regulate commerce 
 among the States"; these five words 
 have given rise to more doubt among states- 
 men, and to more construction by the 
 Courts, than any other phrase in the Con- 
 stitution. You will note that this power 
 is placed third in the line of the eighteen 
 paragraphs of powers granted to Congress. 
 This fact can hardly indicate its relative im- 
 portance, as although they put the power 
 to tax and the power to borrow money ahead 
 of it, yet they put the power to raise armies 
 and declare war much lower down. Now, 
 the opinion of what this paragraph in the 
 Constitution means ranges all the way from 
 those who say that it simply means that 
 the States may not regulate such commerce, 
 and does not imply that the Nation may, in 
 227
 
 THE AMERICAN CONSTITUTION 
 
 any broad sense, but only gives it the neces- 
 sary local control over the physical instru- 
 mentalities of commerce, which, in those 
 days, were only vessels or stage coaches, and 
 over the actual goods transported while in 
 process of transit; this is the old strict con- 
 struction view, and undoubtedly our fathers 
 started with this; and they also probably 
 thought that the States could make regula- 
 tions concerning interstate commerce so 
 long as they did not come into conflict with 
 any law of the United States; to, from that 
 extreme, the radical view of some statesmen 
 to-day who say that under these five words 
 not only has Congress the power to regu- 
 late, but the power to forbid or to tax inter- 
 state commerce ; that the word " commerce " 
 includes not only goods in transit but all 
 articles, crops, or manufactures which may 
 ultimately become the subject of such com- 
 merce; and all instrumentalities of such 
 commerce, physical or documentary; that 
 the right to regulate further includes not 
 only the regulation of the goods or articles, 
 but of the persons who conduct the com- 
 merce and hence of their charges or even their 
 profits; and this last, of course, leads to 
 228
 
 INTERSTATE COMMERCE 
 
 the regulation of the corporations who do 
 so, if it be conducted by a corporation, as 
 in most cases it is. You can see that such a 
 broad construction of the power will really 
 put the control of all the people's commer- 
 cial affairs in the hands of Congress or the 
 Federal Government, except only such nar- 
 row matters and such articles of limited use 
 or transport as are both made, moved and 
 finally consumed within the lines of one 
 State; and under the interpretation pro- 
 posed it would even apply to them if they 
 were in fact tnade, grown or sold by a cor- 
 poration doing business in more than one 
 State. Take, for instance, a man who has 
 a cranberry bog down near Fall River, and 
 a neighbor who has an adjoining cranberry 
 bog in the neighboring State of Rhode Isl- 
 and. If they form a company and put the 
 two bogs together, they become, under this 
 interpretation, subject at once to the con- 
 trol of Congress and no longer under the 
 laws either of Massachusetts or Rhode 
 Island. 
 
 I do not know that I have convinced you 
 that such centralization would be tremen- 
 dous, but if I have not, I can only hope that 
 229
 
 THE AMERICAN CONSTITUTION 
 
 you will think it over. Time forbids my 
 giving all the instances that I think would 
 lead you to see what I mean. The great 
 bulk of commerce is or may be interstate; 
 and this interpretation of the Constitution 
 would not only take the control of the prop- 
 erty away from the citizens under their 
 State laws but would deprive them of their 
 State laws in forming corporations, or pos- 
 sibly even partnerships; would make it 
 necessary for them to conduct their litiga- 
 tion in the Federal Courts; would deprive 
 the States of police powers and the local 
 courts of jurisdiction; and finally deprive 
 the States, and probably even the towns or 
 the counties where they are situated, of the 
 power to tax them. 
 
 You remember there was one great centrali- 
 zation move attempted under the Fourteenth 
 Amendment. The first section says that no 
 State shall deprive any person of life, liberty 
 or property without due process of law, nor 
 deny to any person the equal protection of 
 the laws. Under the theory of the radical 
 republicans, at that time the old Abolition- 
 ist party, this gave the Federal Government 
 the right to step in whenever any negro 
 230
 
 INTERSTATE COMMERCE 
 
 claimed that he was not being treated fairly 
 in any business, or that he was deprived by 
 anybody or any person of any civil rights. 
 This interpretation put all the domestic 
 and social rights, the moment any claim of 
 race distinction was involved, in the hands 
 of the Federal Government; enabled it not 
 only to interfere with State courts or laws, 
 but to make acts of Congress of their own 
 which should bear directly upon the citizen 
 in his domestic, social, or local affairs. Such 
 laws were, in fact, passed, and such inter- 
 ference was, in fact, made by the Federal 
 officers and courts. Now this, you can see, 
 would have been a process of centralization 
 very great — though probably, I think, not 
 greater, at least as far as commercial affairs 
 or rights of property are concerned, than 
 were we to adopt this extreme interpreta- 
 tion of interstate commerce. That attempt 
 by the predominant party under the Four- 
 teenth Amendment, was precisely as if the 
 Norman kings, after the Conquest, had said 
 that any case, or proceeding, or crime in 
 which any Norman was concerned, or in 
 which there was any claim of force by his 
 Saxon neighbors, or indeed any matter 
 231
 
 THE AMERICAN CONSTITUTION 
 
 which concerned the two races, should at 
 once be taken away from the local English 
 courts and brought to the King's Court 
 which he held in person at Westminster, and 
 furthermore, that the local laws should no 
 longer apply to the Normans and Saxons, 
 but that in any case where the rights of 
 both were involved the King of France and 
 England, of the empire, should be allowed 
 to make laws without the consent of the 
 local English Parliament. What was the 
 result ? Well, the result with us after the 
 Civil War was precisely what it was in 
 England after the Conquest — only that we 
 re-asserted local liberties much more speed- 
 ily by reason of the fact that we had a Su- 
 preme Court constructed for just such cases. 
 It took the Federal Supreme Court just 
 about twenty years to destroy this attempted 
 centralization — to say that no powers were 
 taken from the States and no liberties from 
 the people, by the Fourteenth Amendment, 
 only that some were additionally guaranteed, 
 and that all that it meant was that the States 
 could not make any law which, on the face 
 of the law, appeared to go against these 
 cardinal English liberty rights. In other 
 232
 
 INTERSTATE COMMERCE 
 
 words, the grand effect was simply to re- 
 affirm the cardinal principles of Magna 
 Charta as guaranteed as well by the National 
 power against the action of the States as 
 against its own action — making a double 
 safety-lock, as it were, of these cardinal 
 rights through both the Federal and the 
 State Constitution, precisely what they had 
 previously done in the case of bills of at- 
 tainder — but giving no new power to the 
 Federal Government over the people of the 
 States. 
 
 There are certain rights, you will remem- 
 ber, which come under our *'XZ" sub- 
 division, which are guaranteed both by the 
 States and by the Nation in the Federal 
 Constitution, certain liberties protected from 
 the action of both, and the only effect of the 
 Fourteenth Amendment here was to add 
 life, liberty and property, and the equal law 
 clause of Magna Charta, to the others; and 
 I do not think I am inaccurate when I say, 
 at all events it is broadly true, that every 
 attempt by Congress under the Fourteenth 
 Amendment to make laws applying directly 
 to the people of the States — in other words, 
 every attempt to assume new powers of cen- 
 
 233
 
 THE AMERICAN CONSTITUTION 
 
 tralization under the Fourteenth Amend- 
 ment not previously granted in the Con- 
 stitution—was sooner or later declared null 
 and void by the Supreme Court of the 
 United States. And this may yet be the 
 case with the attempted National control 
 over corporations and industries generally. 
 
 How, then, are we to cure the evils of 
 trusts ? For, as you doubtless know, this 
 whole talk of the interstate commerce clause 
 of the Constitution has arisen solely by 
 reason of our desire to regulate and control 
 trusts — the evils of great corporations, tend- 
 ing to monopoly, or not to-day properly 
 regulated by the laws of the States which 
 created them. Even the railways, had they 
 remained in their State lines, would prob- 
 ably never have discovered that they were 
 subject to a National Commission. 
 
 President Roosevelt was the first of our 
 statesmen clearly to express this difficulty. 
 In words that have become historical he 
 pointed out at the very beginning of his ad- 
 ministration that the trouble with these 
 trusts, that is to say, these huge corpora- 
 tions chartered by individual States (for 
 such they had now all become), was that 
 234
 
 INTERSTATE COMMERCE 
 
 they were In practice amcnahle to no sov- 
 ereign. That was exactly the truth; and 
 that is still the difficulty. Corporations are 
 artificial bodies. It is only by a fiction of 
 the law that we have grown to give them 
 any powers at all. It is only by an accident 
 of our National organization that we have 
 permitted them to act in more than one 
 State. A corporation of New Jersey might 
 just as well have been prohibited at the 
 start from acting in the State of Georgia or 
 Massachusetts, as have been allowed so to 
 do. I can only say here that the accident 
 of the law's development worked that way. 
 Broadly speaking, this right does not exist 
 as between different nations; but owing to 
 the desire of our States to be friendly to 
 each other, and the full faith and credit 
 clause, so-called, and other implications in 
 the Constitution, our courts early formulated 
 a doctrine of "comity," which you might 
 translate as courtesy — under which the cor- 
 porations of one State were allowed to come 
 into another State and do business. And 
 not only this, but they came in 7iot only ivith 
 the powers which that State chose to permit 
 to its own corporations, but with all the im- 
 
 235
 
 THE AMERICAN CONSTITUTION 
 
 possible or wrongful powers that might have 
 been granted to it in the State, New Jersey 
 or West Firginia, which gave it its charter. 
 Unfortunately, this business had proved 
 profitable to the States having lax laws. 
 New Jersey is said to run her State Govern- 
 ment entirely on the license fees of corpora- 
 tions, most of which do business elsewhere; 
 and many of the States have got to be mere 
 breeding-nests for these predatory corpora- 
 tions; once hatched in the State, New Jer- 
 sey or Maine or Delaware, and having paid 
 their birth tax, as it were, the parent State 
 took little further interest in them. Like 
 birds of prey, they leave the mother-perch 
 to violate the laws or monopolize the busi- 
 ness of other States. And they are never 
 controlled, or warned back, still less "called 
 down," by the State which created them. 
 The President pointed out in early messages 
 that some such corporations were actually 
 chartered expressly for the purpose of 
 breaking or evading the laws of other States. 
 He put in action all the laws of Congress 
 and all the energies of his department, and, 
 as a result, pressed to a victory for the 
 Government the great Northern Securities 
 236
 
 INTERSTATE COMMERCE 
 
 case, to the probable surprise of most of the 
 offenders. In this case the Supreme Court, 
 though by a divided decision, estabhshed 
 the principle for which the President was 
 contending. That is to say, that under the 
 Sherman Act— the anti-trust act which for- 
 bids combinations of two or more persons 
 or corporations to restrain trade among the 
 States — a single corporation created under 
 the laws of New Jersey for the purpose of 
 holding two railroads and thus evading the 
 national law, was, and remained, a device 
 or conspiracy within the purview of that 
 Act; was therefore forbidden by it; and 
 could be dissolved at suit of the Federal 
 Government. 
 
 Here was a complete victory; and under 
 this decision other victories have followed. 
 There is no trouble, therefore, in restraining 
 or breaking up combinations or corpora- 
 tions organized to monopolize a trade or a 
 business, when that trade is in its nature 
 interstate commerce. Railroads which cross 
 State lines obviously are interstate com- 
 merce corporations. So far all right. 
 
 But we did not exhaust the evil, though 
 some almost thought we had exhausted the 
 
 237
 
 THE AMERICAN CONSTITUTION 
 
 powers of the Federal Government. Under 
 the ordinary older view, only railroads and 
 steamboat or other transportation com- 
 panies were held to be interstate commerce 
 corporations. In fact, our Supreme Court 
 has decided that manufactures, however 
 large, and although conducted by the same 
 combination in many States, are not com- 
 merce, still less interstate commerce. And 
 nearly all the large trusts complained of by 
 the people, which the President is trying to 
 destroy or control, are in the nature of com- 
 binations or consolidations of manufactur- 
 ing corporations, or at least corporations 
 which deal in commodities, manufacturing 
 or trading companies. Does the mere fact 
 that the corporation making them expects 
 that ultimately the goods may be shipped 
 into other States of the Union — or even in- 
 tends so to ship them itself — does this alter 
 the state of things ? Are they for that reason 
 interstate commerce .? Our Supreme Court, 
 in the famous Knight decision, held not. 
 Are we then left without a remedy .? That 
 is to say, under the bad laws of some States, 
 obnoxious trusts, corporations with danger- 
 ous powers were being created. When 
 238
 
 INTERSTAl E COAIAIERCE 
 
 created they did business throughout the 
 Union. Had the Federal Government no 
 remedy ? Was there no remedy for this 
 state of things, no possibihty of a law by 
 which the people could be protected against 
 the injuries they suffered ? 
 
 Three remedies were laid down in the 
 report of the Industrial Commission, and 
 the one they recommended was the one 
 which, at least for some years, the President 
 seemed to prefer. These three remedies 
 are, first, what is perhaps the ideal remedy, 
 to have the States and the Nation work to- 
 gether; that is to say, all the States volun- 
 tarily of their own good sense adopt good 
 corporation laws, if possible the same cor- 
 poration law, so that the evils complained 
 of will not exist. And by corporation laws, 
 of course, I also mean laws aimed at what 
 are called trusts, abuses in restraint of 
 trade, monopoly, etc. This, as I say, 
 would be the ideal remedy. But from the 
 nature of the States, if not from human nat- 
 ure, it seems too much to hope for in this 
 world. Even if forty-five of the States saw 
 the light and enacted an identical good law, 
 it would be all the more profitable for the 
 
 239
 
 THE AMERICAN CONSTITUTION 
 
 forty-sixth State to charter these New Jer- 
 sey corporations with full powers and let 
 them fly away over the land, provided only 
 that they paid an annual tax to the State of 
 New Jersey. There is, however, one rem- 
 edy, but it does not seem to have been men- 
 tioned much in the discussion, certainly not 
 by the President. A State really has full 
 power to protect itself if it wishes to, except 
 indeed, under the modern and radical view 
 of the words "interstate commerce." That 
 is to say, it is admitted that no State is 
 obliged to permit the corporation of any 
 other State to come within its borders and 
 do business. If the State of Massachusetts 
 complains of the Steel Trust, for instance, 
 it has the entire constitutional right to ex- 
 clude that corporation from the State mar- 
 kets and stop all its business and affairs at 
 the State line. And, moreover, it can pre- 
 vent the same results indirectly attained by 
 forbidding one corporation to own stock in 
 another — this, indeed, was the good old 
 common law. These, you see, would be 
 perfectly effective remedies. There is noth- 
 ing to prevent our telling the Standard Oil 
 Company it cannot do business in the State 
 240
 
 INTERSTATE COMMERCE 
 
 of Massachusetts from to-morrow; there 
 is nothing to prevent our forbidding the 
 United States Steel Trust of New Jersey to 
 own stock in the Washburn and Moen Com- 
 pany of Worcester. Indeed, something hke 
 this has been done by the State of Texas. 
 The remedy is drastic and complete. The 
 only trouble is that it may be too complete. 
 The reason it has not been adopted, in my 
 opinion, is very simple — the intelligent radi- 
 cals are not sincere, and the sincere radicals 
 are not intelligent. Whatever be the reason, 
 however, the fact is that this remedy has 
 never been tried and still remains among 
 the powers of the people of the States. 
 
 The President's remedy is Federal arroga- 
 tion of the power by a strained construction 
 of the Constitution. Now, it is always as- 
 sumed by the radicals that this broad inter- 
 pretation of the words "interstate commerce" 
 will be a good thing for the people and will 
 strengthen their powers as against the great 
 trusts and corporations. I believe the exact 
 opposite to be the case. If the words "in- 
 terstate commerce" be stretched to include 
 nearly all business corporations, the States 
 and the people of the States will at once 
 241
 
 THE AMERICAN CONSTITUTION 
 
 become powerless. They will lose all their 
 rights under their own laws. It has been 
 decided by the Supreme Court — in the 
 Pensacola Telegraph case, against the dis- 
 sent of its greater judges — that the one ex- 
 ception to the power of a State to forbid a 
 corporation to do business within its limits 
 is the case of an interstate commerce cor- 
 poration. I hold that, like the rights of 
 the Fourth and Fifth Amendments, the right 
 to conduct interstate commerce is a per- 
 sonal right, not guaranteed to corporations 
 of other States. This case was originally 
 decided only of a telegraph company ex- 
 tending across State lines, but it has since 
 been extended to railroads, and under the 
 construction contended for, apparently by 
 the Administration, it would cover all cor- 
 porations doing business directly or in- 
 directly in more than one State. We had 
 an object lesson in this this year. The first 
 effect of the much-lauded railway rate regu- 
 lation bill has been to deprive the people of 
 the States of all their common-law rights as 
 to the charges of railroads and most of the 
 State's power to control them by statute. 
 The Southern, the Western, States are already 
 242
 
 INTERSTATE COMMERCE 
 
 in arms against it, invoking against the Fed- 
 eral power the Eleventh Amendment. It 
 may be that we shall find Congress makes 
 laws much better than the States did; we 
 can now only hope so. It may be we shall 
 be better protected and have better legisla- 
 tion in Washington than we could make in 
 Boston; but the fact will always remain and 
 must not be lost sight of tliat we are rele- 
 gated to only one tribunal instead of two; 
 we are now dependent only on legislation 
 from Washington, controlled by a Federal 
 Commission, and can no longer protect our- 
 selves by legislation in the States. This, 
 you know, is the great fight now going on 
 between the States of the South and the 
 West against the Federal Government. 
 Federal courts have issued injunctions 
 against enforcing the State railroad laws, 
 and the States, both by the Executive and 
 by the Courts, have been angrily resistant. 
 Railroads are instrumentalities of interstate 
 commerce unquestionably. I have little 
 doubt, therefore, that the Federal Govern- 
 ment will prevail as to them; but note well 
 the vast change if the same principle ap- 
 plies to all other kinds of business as well. 
 
 243
 
 THE AMERICAN CONSTITUTION 
 
 We will, however, dismiss the possibility 
 of uniform action by the Nation and by the 
 States in this great question, as the President 
 has dismissed it, and come to the second 
 proposition, which is the one recommended 
 by the Industrial Commission, and, at first, 
 at least, adopted by the President. It has 
 also in part passed into law. The Federal 
 Bureau of Corporations was established as 
 a consequence of it. This principle is sub- 
 stantially this. Under the Federal Con- 
 stitution Congress has power to regulate 
 interstate commerce and also the persons 
 who conduct it. We do not propose the 
 revolutionary change that would result from 
 giving all corporations Federal charters, but 
 we do propose that any and all corporations 
 which do interstate commerce shall, either 
 under the taxing power or under the direct 
 power given to Congress over such com- 
 merce, be compelled to conform to a certain 
 standard both of conduct and of organi- 
 zation. They shall pay a certain annual 
 license tax, and as part of the machinery of 
 collecting that tax, make the fullest reports 
 giving publicity of all kinds as to all their 
 transactions, showing the fares or rates, 
 244
 
 INTERSTATE COMMERCE 
 
 how much they are earning, whether their 
 charges compare favorably with those of 
 other corporations or even with the standard 
 that the Government may set, and, finally, 
 giving the Government full power over the 
 organization of such corporations. That is 
 to say, to see that there is no watered stock, 
 no fictitious debt, and none of the other de- 
 vices by which extortionate profits are made 
 or monopolies established. And this by 
 automatic process, as it were, prosecuting 
 or depriving of their licenses all corporations 
 whose reports do not show conformity with 
 the law. In my opinion there is no con- 
 stitutional difficulty as to this course, nor 
 have I seen that the President thinks there 
 is. I do not know why there seems to be 
 a tendency just now to abandon it for the 
 more radical, if not revolutionary, other 
 method of control, that of requiring all cor- 
 porations doing interstate commerce busi- 
 ness to be Federal corporations acting under 
 Federal charters, Federal laws, Federal 
 courts. Federal control, and paying taxes to 
 the Nation and not to the State. This sub- 
 ject I have repeatedly adverted to in the last 
 two lectures. I have tried very hard to look 
 
 245
 
 THE AMERICAN CONSTITUTION 
 
 the matter fairly on both sides, but remain, 
 after five years' investigation and study, 
 just where the Industrial Commission was 
 in its final conclusion in the year 1900 — 
 that this method would be drastic, revolu- 
 tionary and subversive of the whole prin- 
 ciple of the American Government, which 
 places the control of political affairs only in 
 the hands of Congress and leaves social and 
 domestic affairs to the States to regulate. 
 Moreover, there is a terrible fault in this 
 method, as proposed, and so far as it now ex- 
 ists. The law recommended by the Indus- 
 trial Commission was fair and equal to all 
 corporations. It required all and every cor- 
 poration doing interstate commerce business 
 to report to the Bureau of Corporations, 
 placed it under its control in so far as it did 
 such business, and gave no power to apply 
 to one corporation a different rule than was 
 applied to the others. By what it seems to 
 me was an unfortunate mistake under the 
 act as drawn, the Commissioner of Cor- 
 porations, an Executive officer resembling 
 indeed one of the early commissioners of the 
 Norman kings, created for the same sort of 
 purpose, was clothed with arbitrary visit- 
 246
 
 INTERSTATE COMMERCE 
 
 atorial, inquisitorial, dictatory powers. That 
 is to say, he, or the President advising him, 
 is authorized to single out one corporation 
 to attack; he is not required to extend the 
 same rule and the same methods of attack 
 simultaneously to all corporations at the 
 same time; he may launch condemnation 
 against one man or one corporation as 
 arbitrarily as an excommunication by the 
 Pope. Visitatorial powers are always ob- 
 jectionable, but are certainly necessary in 
 the case of corporations, which are merely 
 creatures of the State and have no natural 
 rights; and inquisitorial powers of a most 
 drastic and arbitrary kind are given by 
 this Act of Congress to the Executive and 
 its officers. That is to say, the Commis- 
 sioner of Corporations or his agents may at 
 any time descend upon any corporation, ex- 
 amine into all its affairs, insist on seeing all 
 its accounts, its books, and even its private 
 correspondence. This, you know, could 
 not be done with an individual citizen under 
 Anglo-American constitutional principles. 
 You cannot have general search warrants 
 nor compel criminating evidence from any ' 
 man. If you do, then you must not prose- 
 247
 
 THE AMERICAN CONSTITUTION 
 
 cute him for any oflfence that you discover 
 by such methods. But our Supreme Court 
 has just held that this great hberty right was 
 a personal right; that it applies to men and 
 not to artificial bodies like corporations; 
 and that these latter, being creatures of the 
 State, can be treated by it in any manner 
 that it choose; and that the Federal Govern- 
 ment has the same powers over State cor- 
 porations, in so far as they do interstate 
 commerce, that a State itself has over the 
 corporations it creates. This decision ac- 
 cordingly, ratified and armed this law — in 
 so far as the examinations and reports of 
 interstate commerce corporations were re- 
 quired. The law was held constitutional 
 as to them. We have succeeded, therefore, 
 in getting all the matters of corporations 
 engaged in interstate commerce under the 
 control and the investigation of the Federal 
 Government. This was a great achieve- 
 ment, and it is due entirely to the energy of 
 the present President. There can be little 
 doubt but that it is perfectly constitutional, 
 provided only the definition of the words 
 " interstate commerce " be not strained. But 
 when the law goes on, as it does, to give the 
 248
 
 INTERSTATE COMMERCE 
 
 Commissioner of Corporations, or any ad- 
 ministrative officer, acting with or without 
 the advice of the Executive, the power to 
 single out what corporation he shall attack 
 and leave others entirely unmolested — when 
 the law is not a general law applying to 
 everybody, but a permission to the Execu- 
 tive to harry or attack or fine such parties 
 as he or his officers may select — it becomes 
 absolutely counter to Anglo-Saxon con- 
 stitutional principles. The arbitrary power 
 to descend upon such corporation as he 
 selects, *'to go upon it or send upon it" at 
 will or on displeasure — is exactly the kind 
 of authority, the kind of law, that the Nor- 
 man kings or Henry VIII or Charles I used 
 to enact in council and without the consent 
 of Parliament. The mere selection of a 
 "trust" for such investigation is business 
 ruin to it, though innocent. A bank ex- 
 aminer visits all banks; otherwise his pres- 
 ence in a bank would cause a run upon it. 
 The right of the Englishman to equal law 
 is guaranteed in our Constitution; and even 
 the unfortunate corporation is admitted to 
 have property rights, and probably the same 
 right to equal treatment. The present law, 
 249
 
 THE AMERICAN CONSTITUTION 
 
 therefore, is wrong, and should be amended 
 at once or the complaints will grow louder 
 and louder. The equal, self-executing 
 method recommended by the Industrial 
 Commission could, they say (Vol. XIX, p. 
 651) "be employed with little or no danger 
 to industrial prosperity" — such has not 
 proved the case with the present one. More- 
 over, it may be all very well when admin- 
 istered by an honest Executive seeking 
 fairly the good of all the people; but we 
 cannot be sure that we shall always have 
 such a President. If the law continues to 
 exist as it reads now, it will place in the 
 hands of any unscrupulous Executive the 
 most tremendous engine that has ever been 
 created for subverting the principle of free 
 government; for obtaining extraordinary 
 privileges or grants of money; for control- 
 ling the business interests of the country; 
 for party corruption, and for perpetuating 
 himself or his party in office. We must 
 embark upon no course of legislation which 
 places in the hands of the Executive or any 
 officer the arbitrary power to descend upon 
 the trusts — to **send upon or go upon 
 them," as Magna Charta has it — to select 
 250
 
 INTERSTATE COMMERCE 
 
 which one he shall attack, which one he 
 shall fine, which one he shall pardon, and 
 which one he shall leave immune. 
 
 The tendency of the time is the blind 
 rush to cure an immediate evil, oblivious 
 of all else, reckless of method or conse- 
 quences. Because certain sections of the 
 country were aggrieved by excessive freight 
 charges we are asked to abandon our frame 
 of government and put our lives and our 
 affairs in the hands of a centralized power 
 at Washington. Have you any of you 
 thought of the other side, even in this sim- 
 plest and most proper application of the 
 Roosevelt theory ? We have, in this State, 
 complained a great deal of the merger of 
 railways, of the operation of the Boston & 
 Albany, for instance, by the New York 
 Central. Have you yet considered the 
 practical working of the President's plan, 
 even as to railroads — which we all admit 
 to be a proper subject of interstate com- 
 merce ? That it will ultimately place the 
 control of our railways, yes, even of our 
 trolley lines, in the hands of a power far 
 more remote and far more indifferent to 
 the welfare of the people of Massachusetts 
 251
 
 THE AMERICAN CONSTITUTION 
 
 than even the management of the New 
 York Central can be ? The directors of 
 the New York Central must, at least, care 
 somewhat for the prosperity of their busi- 
 ness in Massachusetts; but a Government 
 controlled by the Congressmen of the Mis- 
 sissippi Valley or the far West will be quite 
 as indifferent to our needs and desires as 
 they have been for the past ten years to 
 our clamor for free coal, free hides, and 
 other free raw materials. We now com- 
 plain of the delays on the Boston & Albany 
 Railroad; but we can at least go before our 
 own State Railroad Commission, and they 
 have power at once to give redress. But sup- 
 pose it were a Federal corporation; it could 
 not be sued in the courts of Massachusetts, it 
 would not be subject to the laws of Massa- 
 chusetts, it could not be controlled by our 
 Commission, and to any complaint of a 
 passenger from Newton Centre that his 
 train was late, it would serenely refer him 
 to the Interstate Commerce Commission at 
 Washington — at such time as they chose or 
 might find leisure to listen to his story. I 
 admit that the railroads are one proper sub- 
 ject of regulation under the Interstate Com- 
 252
 
 INTERSTATE COMMERCE 
 
 merce Clause of the Constitution; but I 
 earnestly assert that if all control or power 
 over them is taken from the people of the 
 States where they run, and handed over to 
 an overworked board of political appointees 
 at Washington — the last condition of the 
 people of these States will be worse than the 
 first. 
 
 We have now concluded our brief survey. 
 I shall be well content if I have called your 
 attention to a few cardinal propositions. I 
 am aware that in this course I have taken 
 the unpopular side. A Chicago newspaper, 
 referring to these lectures, uses the following 
 words: "Whenever a Federal railway or 
 food inspection law is needed, whenever any 
 evil is to be cured which the States will not 
 correct, the Professor would urge us to let 
 the evil be, lest we find ourselves hopelessly 
 under the Government at Washington. Lib- 
 erties are of little worth if they cannot be 
 exercised." Now this is a fair sample of 
 the kind of criticism I have met with, and 
 betrays the need of education of this Chicago 
 editor in just such subjects as we have tried 
 to explain. Note in the first place that the 
 very instances he chooses are precisely the 
 253
 
 THE AMERICAN CONSTITUTION 
 
 instances which I have mentioned as proper 
 for Federal regulation. I do not question 
 that both railways and the commerce of 
 adulterated foods or drugs across State lines 
 may properly, and wisely, and constitution- 
 ally be controlled and regulated by the 
 Government; the Industrial Commission 
 drew up a bill for Congress which should in 
 the same manner control the traffic across 
 State lines in goods the product of convict 
 labor. This is apt to be the case with all 
 the advocates of Federal aggrandizement. 
 The examples they choose are precisely the 
 ones upon which we are all agreed. If I 
 have seemed unduly critical of our present 
 President, it is merely that he does so many 
 more things than other Presidents have 
 done that there is greater chance that some 
 provoke our discussion. With many of his 
 objects I am in sympathy. But I am look- 
 ing to the future. In my opinion, every one 
 of these objects can be gained in constitu- 
 tional ways, in methods which will not alter 
 our frame of Government and hand over our 
 most precious heritage shattered and im- 
 paired, to be perverted to the selfish uses 
 of some less patriotic President in some 
 254
 
 INTERSTATE COMMERCE 
 
 future time. The American people are 
 silent to-day. That is simply because they 
 trust the good intentions of tlie President. 
 If it were Andrew Johnson that were doing 
 these things, you would hear a very differ- 
 ent story. But if the States, to use the 
 Chicago newspaper's phrase, will not cor- 
 rect an evil, it is, in the last analysis, be- 
 cause they do not consider it such. When 
 they do so consider it, they can cure it them- 
 selves, either by ordinary legislation or, if 
 necessary, by amendment to the Constitu- 
 tion. As Mr. Roosevelt said of Oliver 
 Cromwell: "He was for good government, 
 but it was not for him alone to insist on 
 what good government was." 
 
 I shall be satisfied if I have left some half 
 a dozen concepts clear in your mind. First, 
 local self-government and the common law, 
 both forever essential to a free English 
 people. Second, the separation of the pow- 
 ers, that the Executive shall not control 
 legislation, or government officers assume 
 judicial powers. Third, the great prin- 
 ciple that has kept our Nation alive so far, 
 that the Centralized Government of our 
 mighty empire is confined to political pow- 
 255
 
 THE AMERICAN CONSTITUTION 
 
 ers alone, National defence, our relation to 
 other nations, and, possibly, national im- 
 provements — such as the deepening of the 
 Mississippi River; while the domestic af- 
 fairs of the people — men's lives and liberties, 
 their acquirement of property, and their 
 relation to their neighbors — is left to each 
 man's own State to control, each State 
 wisely differing in its laws where differences 
 of climate, race conditions, or industry so 
 demand; and that any attempt forcibly to 
 make them all conform to a procrustean 
 rule is the height of unwisdom and folly. 
 And, finally, that our Constitution demands 
 everywhere a republican form of govern- 
 ment — everywhere that our flag shall go. 
 As the Thirteenth Amendment puts it, 
 slavery shall not exist — not only in any 
 State — but in any place subject to the juris- 
 diction of the United States. 
 
 And the great document itself is not a 
 dry code of rules, but the sum and substance 
 of our liberties gained in a thousand years 
 of struggle for freedom; and, as was said 
 by one of our great Chief- Justices, the Con- 
 stitution *' speaks not only in the same words 
 but with the same meaning and intent with 
 256
 
 INTERSTATE COMMERCE 
 
 which it spoke when it came from the hands 
 of its framers and was voted on and adopted 
 by the people of the United States"; and 
 by the other, Marshall, "No political 
 dreamer was ever wild enough to think of 
 breaking down the lines which separate the 
 States, and of compounding the American 
 people into one common mass. Of con- 
 sequence when they act, they act in their 
 States. But the measures they adopt do 
 not, on that account, cease to be the meas- 
 ures of the people themselves." And again, 
 in another case: *'The genius and character 
 of the whole Government seems to be that 
 its action is to be applied to all the external 
 concerns which affect the States generally, 
 but not to those which are completely 
 within a particular State." And, finally, by 
 George Washington: "If in the opinion of 
 the people the distribution or modification 
 of the constitutional powers be in any par- 
 ticular wrong, let it be corrected by an 
 amendment in the way which the Constitu- 
 tion designates. But let there be no change 
 by usurpation; for though this in one in- 
 stance may be the instrument for good, it 
 is the customary weapon by which free 
 
 257
 
 THE AMERICAN CONSTITUTION 
 
 Governments are destroyed. The precedent 
 must always greatly overbalance in per- 
 manent evil any partial or transient benefit 
 which the use can at any time yield." And 
 by Abraham Lincoln: "To maintain in- 
 violate the rights of the States to order and 
 control under the Constitution their own 
 affairs by their own judgment exclusively 
 is essential for the preservation of that 
 balance of power on which our institutions 
 rest." 
 
 It is a sad contrast between the way that 
 so many of our people, or our newspapers, 
 feel to-day, one hundred and twenty years 
 after the adoption of our Magna Charta, 
 and the way the people felt in England, 
 exactly the same time, one hundred and 
 twenty years, after the adoption of their 
 own. For, in 1253, ^^^ hundred and 
 thirty-eight years after John's Charter, in 
 the thirty-seventh year of the reign of Henry 
 III, a popular King, a great jurist, and a 
 radical maker of new laws: *'0n the third 
 day of May [I read from the Statutes of the 
 Realm in Latin] in the great hall of the 
 King at Westminster^ tn the presence of the 
 King and his brother and the Marshall of 
 258
 
 INTERSTATE COMMERCE 
 
 England^ and the other estates of the Realrriy 
 We, Boniface, Archbishop of Canterbury, 
 and the Bishops of London, and Ely, and 
 Rochester, and Worcester, and Lincoln, and 
 Norwich, and Carlyle, and St. David^s, all 
 appareled in pontificals, with tapers burn- 
 ing, against the breakers of the liberties or 
 customs of the Realm of England, and 
 namely those which are contained in the 
 Charter of the Common Liberties of Eng- 
 land, excommunicate, accurse, and from the 
 benefits of our Holy Mother the Church, 
 sequester all those who, by any craft or 
 wiliness, do violate, break, diminish or 
 change the statutes and free customs of the 
 Realm of England, to the perpetual memory 
 of which excommunication we, the afore- 
 said prelates, have put our seals.^* So in 
 1253 they felt — and so in 1907 should we 
 feel now. 
 
 259
 
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