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THE RISE OF CONSTITUTIONAL LAW

When we look backward over a few hundred years the scene is generally somewhat blurred; but as the future is still more vague and indistinct, I trust that you will excuse me if I indulge in a reminiscence, and endeavor to glean something from the past; not a past that is dead, but a past that is most intimately connected with our present, and that must exercise a very controlling influence on the future for all time.

When we are floating on some great river that is silently approaching the sea, our attention is naturally attracted to the passing vessels, to the flitting scenery on the shore, the fields, the trees, the houses, the villages, all of the successive changes of the landscape, without ever thinking of the far off fountain in the wilderness in which the mighty stream had its origin. So it is with our institutions. We are interested in their modern aspects, in their present operation, their actual influence in our own day and time, without giving much thought to the remote periods in which they had their birth. There has long been, however, a school of jurists who have insisted that the historical method is the true one to be applied to legal studies; but that is a question that I do not care to enter upon at this time, further than to suggest their opinion as an excuse, as far as it may extend, for what I shall have to say on this occasion.

Our laws, like our language, have been derived from many sources. Many of them can be traced to periods as early as the Roman Republic; many were imported by our ancestors from our mother country; vestiges of the feudal system have survived though that system has perished; while other laws are of indigenous growth; but all of them are connected in some way with a past somewhat remote, and with each other. Let us take our system of constitutional law. In many respects it has been expanded beyond all known precedents, so as to have a stamp that is peculiarly American; nevertheless it had a very vigorous origin among scenes the most dramatic long before Columbus set his sails on his memorable voyage of discovery. That origin is not lost in the night of time; but may be traced with an unusual degree of certainty. I purpose, with your kind indulgence, to say something about the birth of the principles of constitutional government which in our country have attained to such a vigor and predominance as have never been known elsewhere, stating some of the facts closely associated with that event.

If any of us had been living, and had been in the cathedral of Worcester, England, on the seventeenth day of July, 1797, he would have beheld a strange sight. The doors of that immense building were closed and bolted from within, and the light, sifting through richly stained windows, revealed a group of men gathered around a tomb of antique aspect which stood, and still stands, in the choir just before the high altar. On the top of the tomb was the recumbent figure of a man, his hands encased in jewelled gloves, the palms pressed together as if in prayer. Some of the men there present were mechanics with hammers, chisels and crow-bars, with which they proceeded to prize off the ponderous covering of the tomb of which the marble effigy formed a part. Beneath was found a coffin, likewise of marble, broken across, as was supposed, long before that time, when the tomb had been removed from some other part of the building for the purpose of making repairs.

Nearly six hundred years had passed away since King

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John had been laid to rest in that tomb, with an unparalleled dearth of tears.

There had been some controversy as to the precise spot in the cathedral in which lay the body of John; some antiquaries contending that it lay beneath the pavement where the tomb had formerly rested; a spot still marked by a marble slab; and others contending that John was buried at Croxton, as stated by one old author. Finally Mr. Green, the historian of Worcester, with some others, obtained the consent of the dean and chapter of the cathedral that the tomb might be opened, so that all doubts might be dispelled. When the lid of the coffin was lifted it disclosed all that was left of the dead monarch. A drawing was made of the open tomb which has often been reproduced. The skeleton measured five feet six inches in length, the forehead was heavy and narrow, as shown in all of the pictures of John. The truth of history was confirmed. When the king was alive, one of his ambassadors had said of him:

“The King of England is about fifty years of age, his hair is quite hoary; his figure is made for strengthcompact, but not tall."

Although the king's body had been embalmed by his physician, Thomas de Wodestoke, abbot of Caxton, yet the balsams and spices had not availed in the long warfare waged by the elements; and the flesh had disappeared. The body had been clad exactly as represented by the effigy that lies on the tomb, except that the hands were not encased in gloves, and that in lieu of a kingly crown it wore a monk's cowl, put on at the king's dying request, in the hope that it might scare the devil away, or deceive the keen vision of the Angel of the Resurrection. It was in the same frame of mind that John requested that he might be entombed in this spot so that he might sleep near the bodies of the holy saints Wulfstan and Oswald, who, as he trusted, would charitably intercede for him at the last day. By means of these prudent precautions he hoped to slip along with the elect into the Kingdom of Heaven.

But let us look once more, and see what he had left behind him in token of his mortal life.

The head having been slightly elevated, the skull had become detached from the rest of the skeleton, which had been clad in a long robe of crimson damask of peculiarly strong texture. A part of the embroidery of the robe remained near the right knee.. The legs were covered with an ornamental close dress tied at the ankles; and the bones of the feet were visible through the decayed parts of the drapery. A sword that had been clasped in the left hand had been eaten by rust into pieces, which lay scattered down the same side of the body. The right hand, which had become detached, lay on the right thigh of the skeleton.

A sword that time had broken as if in mockery, a skull masquerading in the head-dress of a monk, a few decaying bones and vestments were the only visible remains of a once powerful monarch, the greatest enemy of free government that was ever seen in England. It is easy to conclude that these vestiges of mortality were regarded by those present with curiosity rather than with reverence. Other churches may contend in devout rivalry as to the respective merits of saints whose relics, shrines, or tombs they possess; but it will perhaps be universally conceded that the cathedral of Worcester holds enclosed within its consecrated precincts one of the vilest of the champions of wickedness.

The iniquities of John were so enormous and so numerous as to stagger belief; and some have been inclined to distrust the veracity of the old chroniclers by whom they have been recounted; yet these chroniclers furnish most of the testimony on which all of the histories of that period are based. Many of the most atrocious crimes of John are perfectly well authenticated. No one doubts that he murdered his young nephew, Arthur, the rightful heir to the throne, though the precise manner in which the deed was accomplished may be open to dispute. A long and most appalling series of criminal acts is equally well established. To kings in those days much was forgiven; but John acquired such a reputation in the popular mind for depravity and villainy that in the reign of Richard II the insurgents exacted an oath that no king named John should ever sit on the English throne. We may well conclude that a monarch that could not engage the services of a single apologist was immune to all the virtues.

There is a class of men whose business it is to exonerate and to justify illustrious scoundrels. We have been told that Tiberius Cæsar was possessed of many virtues; that he was rather remarkable for goodness and wisdom. Walpole thought that Richard III had been much maligned. In our own day we have seen volumes in praise of Danton, Robespierre and St. Just; and only within the last few months a life of Marat has been published, intended to prove that the Friend of the People was a humane, good man misunderstood; but no one, I believe, has ever aspired to rehabilitate King John. The way is open; and here is a virgin field for lovers of paradox. Of him I am willing, however, to believe anything that is bad, and will trust the old chroniclers, since they are not contradicted, and all they say of him is wholly in keeping with his well-known character. So terrible and enormous were his misdeeds that it has indeed been suggested that he was insane; but he was very cunning and crafty withal; and unfortunately a great amount of wickedness is not incompatible with saneness of mind. I will only mention a very few of the accusations made against him by writers who knew more about him than we can possibly know.

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