the people, having (for eleven years from 1776 to 1787) for the first time in the history of the world gained all the reins of power, should, voluntarily and of their own high intelligence and patriotism, have put certain things beyond the power of their own Congress, of their own Legislatures, of the very government they were about to create.1 Theirs was the high experiment, to found a nation that should forever be without Imperial power; wherein the Bill of Rights, the cardinal principles, should be kept from the hands of sovereignty itself, and all the powers of autocratic nations, of continental empires and kingdoms, should be given neither to Congress nor to President, but sleep in the lap of the people until they woke to further need.

Lastly, with us the people are sovereign; not, as in England, the Parliament; nor, as in continental countries, the king; and this led, logically and necessarily, to the invention and the function of our Supreme Court. In all other countries, either there is one sovereign, or there are branches of the government co-ordinate and of equal dignity; and it would be presumptuous for the judicial branch to question the acts of either other. But in England we had the history of the judgments by the courts, of the king's own acts, or those of his officers under his orders. "What power the king hath, he hath but by law." This English heritage, joined with the logic of our Constitution, led to the creation of our great tribunal. When a people has granted to its government only certain powers, it may not trust to the wisdom of that government to judge of its own oversteps. When it has parcelled out those powers between Congress and Executive, between Federal government and State, neither branch, neither forum, may safely be entrusted to determine its own power or to limit its own realm. Therefore the people said, This Constitution we establish for the government of our country; it shall stand until we, the people, by amendment alter it; and beside the Executive and the Congress we place our Supreme Court, which shall judge matters arising between States or citizens of different States, or which involve any principles of this our Constitution; and the judges of that Court shall be bound by this Constitution and its provisions as against any

"Though this Government pos- power of both, as delegated, embraces sesses sovereign power, it does not the whole range of what might be possess all sovereign power; and so called sovereign power." James B. the State governments, though sover- Thayer, "Legal Essays,” p. 203, quoteign in some respects, are not so in ing Daniel Webster, in Luther v. Borden, all. Nor could it be shown that the 7 How. 1.

State or power, civil, executive, or military, and as against the acts of their own representative assembly.

This is the great difference, the great distinction of our Constitution. It is a commonplace to say that there is nothing like it in England, nor indeed elsewhere in the world. No other country has dared as yet to grasp the idea that the people may have a guardian above the laws made by their representatives. Many countries have written Constitutions, but in none can a statute be declared void by the courts.

And there is another important practical difference between the English Constitution and our own. Theirs in the main is composed of limitations upon the Executive. Ours limits (what is to-day far more important) the legislative assemblies as well. In theory still, the English Constitution is a pact between the King and Parliament, which is sovereign and brooks no constitutional control. Ours is the written will of the people, who are with us sovereign, addressed to their servants, the three branches of government, and defining and delimitating their powers among themselves. Both constitutions embody the frame of government; but in this the English is much simpler, for it provides but for the supremacy of Parliament, the power of the Commons in money matters, and the limitations imposed upon the king. Even the Cabinet, that committee of the House of Commons which now rules the nation, is not mentioned in the English Constitution. But it was necessary for our Constitution, besides setting up the frame of government, and that more complicated and explicit, as befits a Republic, also to set forth, in words so exact as to be undoubted, both the powers and the prohibitions given to Congress and the division of power between the Federal government and the States.

Most important in our Constitution to-day is that portion which is not the frame of government, but the liberties of the people; the part most neglected by historians and in treatises upon constitutional law. In this great domain the English and American Constitutions are practically identical; only that the American Constitutions, Federal and State, express in many words what the English Constitution puts in a very few, while of course the English restraint upon Parliament, though equally (some think more) effective, is a moral one. The growth of words in which these cardinal principles are swathed is curiously shown in Book II of this work. Besides we have, in our Federal Constitution, not only to secure these liberties to the indi

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 trial 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.