vidual as against the Federal government, but in some cases against the State governments as well; and our State Constitutions, which, after all, with us are the charters of the people's liberties in the ordinary relations of mankind, seek to protect the individual also against the State Legislatures. In this, indeed, they go much too far, as we shall later (Chapter XI) discuss. This branch of constitutional law forms the main subject of this work. There are many political treatises in which matters relating to government, hitherto deemed most interesting and perhaps most important, have been exhaustively treated; but in no work has attention been concentrated on those constitutional documents which embody the people's liberties; and in none is the Federal with all the State Constitutions compared and brought together. My last predecessor in this attempt (William Smith) wrote in Philadelphia what he calls "A View of the State and Federal Constitutions Compared" in 1797. It fills about twenty-eight pages, and his attention is entirely concentrated on the frame of government, the terms of governors and judges, and the methods of electing them and the members of the State Legislatures. Nothing whatever is said about the Bills of Rights, or other matters even such as the Interstate Commerce Clause, the clauses limiting State and Federal legislation, or the Fifth Amendment, which have proved to be of infinitely greater importance; nor of course of those modern restrictions, relating to labor, corporations, liquor laws, and the like, so voluminous in the newer State constitutions. These cardinal rights may, for convenience at least, be divided into the four great realms of Rights to Liberty, to Property, to Law, and Rights of the people as against the Government. Logically and historically the first is the right to law, for there can be no property, no government and no real liberty without law. CHAPTER II THE RIGHT TO LAW THE Right to Law, peculiar to the English people, is the right of any one, irrespective of rank or station, to appeal to the ordinary law courts for trial of any dispute between him and any other person, or body of persons, or even any officer of the government. This applies as well to criminal as to civil cases, and to any infringement, by any person or officer, acting under whatever authority, upon the individual rights to liberty and property, or other civic rights. In England, and with us, there is no Administrative Law; no peculiar corpus juris extending to the doings or relations of government or any officer thereof, such as exists in all continental countries. The notion that the doings of the government itself, or even of the king, in the person of any of his officers, can be questioned by any subject in the ordinary law courts - conjoined with the right of instant inquiry into the reason or pretext of the detention of any man's person by the officers of government, civil and military as well as judicial — is the principal reason that England has been called free. The law required by this general right, furthermore, must be the Common Law of the English people. That is to say, in origin, the body of their free customs and usages, made by themselves, not by a king, and also, in earliest days, enforced by themselves; and furthermore it must be the Common Law, not the Roman or Civil Law, nor the Canon or Church Law, nor any supposed Administrative Law, or orders or decrees of the king, or king in Council. Even chancery jurisdiction, which rests originally on the royal power as wielded by the king's chancellor (whence the writs of injunction, mandamus, prohibition, etc., are called Prerogative writs), is hardly an exception. For many centuries we find statutes restraining or limiting chancery jurisdiction. It arose comparatively recently (we can almost fix the time of the first use of equity process, in matters of trade and domestic affairs as now used, at the time of Jack Cade's Rebellion in 1452) and as we all know, the prejudice against the injunction, and the interference of Chancery courts with ordinary criminal jurisdiction and the principles of the Common Law, has not yet disappeared (see Chapter IV). Equity therefore, may truly be said to be a modern growth upon the body of the Common Law. All its other competitors or intruders were early got rid of. Statutes against the Roman law will be found in the fourteenth century, while the ouster of Canon Law, of the Church courts, from their jurisdiction in England, begins with the Constitutions of Clarendon. The three great heads of the growth of the English Constitution, from the Conquest until modern times, are indeed but the resumption by the whole Parliament of its power to make laws, by the Commons of their power to regulate taxation, and by the people generally of their right to be tried in their local courts by their neighbors under the Common Law, and to have no royal officer or Civil Law or church tribunal hold himself above it. The procedure must always be the people's; and, since the time of Henry II, by grand and petit jury; for the Saxon method of trial by ordeal was abolished by the Lateran Council in 1213, and about the same time the English got rid of the Norman method of tria! by battle. The broad principle remained that an Englishman could only be put in peril by a grand jury of his neighbors, and definitely condemned or his property forfeited by twelve men of his peers. It is true that the machinery of the Norman Inquest was applied to the jury system; but the principle of the latter pre-existed, even as we go back to the earlier times when a man's neighbors helped him to enforce his law, or the earliest times when he enforced the law himself. For it results logically, and did result historically, from the Anglo-Saxon conception of law that it might be enforced by anybody; these were the times of the “unwritten law," and the law, like the moral code, was supposed to be known of every one and justified a man's right hand. Earliest statutes, therefore, never declared the law, but merely defined the penalties for its enforcement; just as the modern statutes against trusts add nothing to the old common law except to define the penalties for its infringement. In early English trials, therefore, what was tried was rarely whether the man did the deed (it was usually admitted or known), but whether he was right in doing it: that is to say, was he in his law? Was he acting upon a state of facts. whereon the unwritten law gave the right of reparation or vengeance into his own hands? If not, he was out of law, outlaw; that is, he had lost his right to law as against any one molesting him in person or property. As Stubbs remarks, the early English statutes, before the Conquest, are hardly statutes in the modern sense. When they have not to do with matters of procedure, or penalty, they are but vague statements of the moral law. The underlying law, like the Ten Commandments, is supposed to be known of every one. Written statutes busied themselves only with the amount of the were, or fine, or (for the first century after the Conquest) with the method of procedure. Furthermore, the right to law involved the right to trial by a man. at home by his local courts according to his local customs, originally by his neighbors. The jealousy of the King's judicial power, of the Court following the person of the king or even centralized in London to the exclusion of the jurisdiction of the county courts, is shown in every constitutional document, beginning with Magna Carta, in a long line of statutes, in the Declaration of Independence, and in the American Constitution. "The great original principle of the English judicial system was that of trial in local courts properly constituted - trial per pais, in the presence of the county, as opposed to a distant and unknown tribunal.” 1 And the law enforced was the law as it was in the time of Edward the Confessor, the customary law of the people, not the statutes of the Norman sovereign. Thus, in 890, "I, then, Alfred, king, gathered these (laws) together, and commanded many of those to be written which our forefathers held, those which to me seemed good; and many of those which seemed to me not good I rejected them, by the counsel of my 'witan.' . . . I, then, Alfred, king of the West Saxons shewed these to all my 'witan', and they then said that it seemed good to them all to be holden." After the Conquest every Norman king was made on his coronation oath to promise this, the law of Edward the Confessor, until Magna Carta; after that they promised to respect Magna Carta instead, which was thus reissued or confirmed thirty-two times in the eighty-two years which intervened between Runnymede and the final Confirmation of charters under Edward I. Thus, William the Conqueror himself, in his charter to the City of London says, in Anglo Saxon: "And I do you to wit that I will that ye two be worthy of all the laws that ye were worthy of in King Edward's day." So the Domesday Book records "the customs," that is to say, the laws, of various towns and counties; these bodies of customs invariably containing a mere list 1 Taswell-Langmead, 6th ed., p. 28. Ibid., p. 83. 2 Stubbs' Charters, p. 62. of penalties for the breach of the established law, while later charters usually give the inhabitants of a town all the customs and free privileges enjoyed by the citizens of London. In 1100 Henry I in his Charter of Liberties promises in the first section relief to the kingdom of England from all the evil customs whereby it had lately been oppressed, and finally returns to the people the law of Edward the Confessor "with such emendations as my father made with the consent of his barons." In his charter to the citizens of London he 2 promises general freedom from feudal taxes and impositions, from dane-geld, and from the fine for the murder of a Norman; and the Charter of Liberties issued by Henry II in 1154 confirms their "liberties and free customs to all men in the kingdom." In Magna Carta the right to law is of course primarily guaranteed in Cap. 39, that no freeman is to be molested except "by the law of the land"; also by Cap. 24, prohibiting minor royal officers from trying criminal cases; and Cap. 13, which extends the ancient liberties and the free customs of the citizens of London as well by land as by sea to all other cities, burghs, towns, and ports in the realm as to their own law. In 1309 (see Historical Digest) we already find a statute restraining chancery jurisdiction and forbidding arrest, conviction, or forfeiture without a jury, a principle only recently revived in the Constitution of Oklahoma; in 1331 a statute against invasion of common law jurisdiction by the chancellor; in 1383 a protest against Roman law and a definite prohibition of it to the courts of England; in 1391, no man is to be compelled to answer before a Lord (of matters determinable at common law), and there is another statute limiting admiralty jurisdiction and again prohibiting the Roman law. In 1406 the House of Commons present their Petition of thirty-one articles, of which the tenth provides that the Council should determine nothing cognizable at common law unless by the advice of the judges; and other clauses are that all officers shall personally perform their duties and be sworn to observe "the common law of the land"; but in 1452, after Jack Cade's Rebellion, the Act 31 Henry VI, C. 2, provides that in case of riots or disorder an offender may be commanded to appear in Chancery and, if he disobey, the chancellor may issue writs of proclamation to appear within one month. or suffer forfeiture or outlawry; and although this statute continued 1 Stubbs' Charters, p. 101 (clause 13). 2 Ibid., p. 108. Ibid., p. 135. 4 See Book III., §§ 650, 662. For this principle in modern American State Constitutions, see Book III, § 215. |