THE BILL OF RIGHTS.
THE English common law, which lies at the basis of English and American
liberties, is the growth of centuries, and its maxims breathe the very spirit
of the race. It is that "law of the land," to which the Magna Charta of King
John referred for the guarantee of personal rights; and its essential
principles are interwoven with the Petition of Right of Charles I., and the
Bill of Rights and Act of Settlement of the Revolution of 1688. So far as
applicable to American conditions, "it was brought over by our ancestors," says
Chancellor Kent, "upon their first emigration to this country."
And the royal charters included it in their provision, that Englishmen in the
colonies should be entitled to the same privileges as Englishmen at
Formal declarations of rights, drawn from the common law, were
incorporated in the earliest colonial legislation. Plymouth Colony, in the
first of these, enumerated, among other privileges, that justice should be
impartially and promptly administered, with trial by jury, and that no person
should suffer in life, limb, liberty, good name, or estate, but by due process
of law. Connecticut, in 1639, adopted an act closely similar. New
York enacted, in 1691, that no freeman should be deprived of any rights, or
liberties, or condemned, save by the judgment of his peers, or the law of the
land; that no tax should be levied except by act of the legislature in which
the colonists were represented; that trial by jury should be maintained, and
that in all criminal cases there should be previous indictment by a grand
inquest. Though the king repealed this act, another, of like import, was
adopted in 1708. Massachusetts, in 1641, promulgated a Body of
Liberties, the first paragraph of which reads: "No man's life shall be taken,
no man's honour or good name shall be stained, no man's person shall be
arrested, restrained, banished, dismembered, nor anyways punished, no man shall
be deprived of his wife or children, no man's goods or estate shall be taken
away or anyway endangered under colour of law or countenance of authority,
unless it be by virtue or equity of some express law of the country warranting
the same, established by the General Court and sufficiently published, or in
case of the defect of the law in any particular case, by the Word of God, and
in capital cases, or in cases concerning dismembering or banishment, according
to that word to be judged by the General Court." In like manner, declaration of
rights was made by the legislature of Virginia in 1624 and 1676; by the
legislature of Pennsylvania in 1682; of Maryland in 1639 and 1650; and of Rhode
Island in 1663; and also by the proprietaries of Carolina in 1667, and of New
Jersey in 1664, 1683, and at other dates. The assembly of Maryland of 1638-1639
declared Magna Charta to be the measure of their liberties.
The whole subject of privileges was forced into special prominence by
the outbreak of the constitutional struggle between the colonies and England.
And so it was that the congress of delegates from nine colonies, which met in
New York in 1765, issued a general declaration of rights; and that a further
and more formal pronouncement of the same character was put forth by the first
Continental Congress in 1774. The latter became the basis of the bills of
rights which eventually were incorporated into the constitutions of the new
States. It declared "that the inhabitants of the English colonies in North
America, by the immutable laws of nature, the principles of the English
Constitution, and their several charters or compacts, were entitled to life,
liberty, and property; and that they had never ceded to any sovereign power
whatever a right to dispose of either, without their consent; that their
ancestors, who first settled the colonies, were, at the time of their
emigration from the mother-country, entitled to all the rights, liberties, and
immunities of free and natural born subjects; and by such emigration they by no
means forfeited, surrendered, or lost any of those rights; that the foundation
of English liberty, and of all free government, was the right of the people to
participate in the legislative power, and they were entitled to a free and
exclusive power of legislation in all matters of taxation and internal policy,
in their several provincial legislatures, where their right of representation
could alone be preserved; that the respective colonies were entitled to the
common law of England, and more especially to the great and inestimable
privilege of being tried by their peers of the vicinity, according to the
course of that law; that they were entitled to the benefit of such English
statutes as existed at the time of their colonization, and which they had by
experience found to be applicable to their several local and other
circumstances; that they were likewise entitled to all the immunities and
privileges granted and confirmed to them by royal charters, or secured by their
several codes of provincial laws."
It was widely anticipated by the public that the national Constitution
drafted at Philadelphia would contain a full enumeration of such ancient
rights. The members of the Convention seem not to have appreciated the force of
this popular feeling; considering that as the people themselves now possessed
the power of making their own laws and of selecting those who should execute
them, specific announcement of privileges which had grown out of old
controversies with the crown was unnecessary. Sufficient provision was made in
the body of the Constitution for taxation by the legislature only, for judgment
in cases of impeachment, for the privilege of the writ of habeas corpus,
for trial by jury in criminal cases, for the definition, trial, and
punishment of treason with limitation of historical abuses in such connection,
for the prohibiting of bills of attainder, ex-post facto laws, and laws
impairing the obligation of contracts or imposing religious
tests. All these were so many declarations of rights for the
protection of the citizens, not exceeded in value by any which could possibly
find a place in any bill of rights. But as soon as the draft of
the Constitution left the Convention, the lack of a formal bill was severely
and persistently criticised by the people. And the promise that one should be
added, as soon as the new government actually got under way, was found
necessary in order to induce some of the principal States to ratify the
instrument. The first ten amendments, therefore, were adopted as speedily as
possible by the first Congress and the nation; and to all intents they are to
be regarded as a part of the Constitution in its original unity, as a product
of the formative period. Their position in this respect is
essentially different from that of the amendments which are the outcome of
subsequent national experience.
Thus there is not only a bill of rights in the Constitution of the
United States, but that bill of rights was consciously demanded by the American
people themselves against the judgment of their own Constitutional Convention,
and for the express reason that they regarded the liberties included therein as
their liberties, because based upon old English law.
Let us take up consecutively these ten amendments. The first reads:
"Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the right of the people
peaceably to assemble, and to petition the government for a redress of
The first clause of the amendment treats of the right of religious
liberty, — a right the daughter-land was before the mother-country in
establishing. The English Toleration Act of 1688 granted
privileges to dissenters, which their active share in seating William of Orange
on the throne was thought to have earned; and though far from according
religious freedom, it laid foundation for the future. Reactionary statutes
passed in the latter part of the reign of Queen Anne were repealed in the early
years of the House of Hanover; and from the accession of George
II. dissenters were admitted to civil offices. The laws against
Roman Catholics, also, were gradually softened in operation.
Early in the reign of George III. modern principles of toleration were
enunciated in a judicial decision of the Lords, on which
occasion Lord Mansfield declared, in moving the judgment of the House: "There
is nothing certainly more unreasonable, more inconsistent with the rights of
human nature, more contrary to the spirit and precepts of the Christian
religion, more iniquitous and unjust, more impolitic, than persecution. It is
against natural religion, revealed religion, and sound policy."
Regulations relating to dissent became more and more relaxed. And on the verge
of the adoption of the American Constitution, measures for the relief of both
Roman Catholics and Protestants were passed; and these were followed by a
series of acts which eventually removed all civil disabilities.
Of the condition of things in the colonies, Green thus speaks: "Europe
saw, for the first time, a state growing up amid the forests of the west, where
religious freedom had become complete. Religious toleration had, in fact, been
brought about by a medley of religious faiths such as the world had never seen
before. New England was still a Puritan stronghold. In the southern colonies
the Episcopal Church was established by law, and the bulk of the settlers clung
to it; but Roman Catholics formed a large part of the population of Maryland.
Pennsylvania was a State of Quakers. Presbyterians and Baptists had fled from
tests and persecutions to colonize New Jersey. Lutherans and Moravians from
Germany abounded among the settlers of Carolina and Georgia. In such a chaos of
creeds, religious persecution became impossible."
The boast was wont to be made, that the Puritans of New England led the
way in establishing by law religious toleration. A similar claim is still put
forth on behalf of the Baptists of Rhode Island and the Roman Catholics of
Maryland. The honour belongs to Rhode Island, where legal action of the colony
— proceeding, however, from the co-operation of diverse religious elements
— was taken in 1647. The toleration practised earlier in
Maryland was of limited character.
In 1664 the proprietaries granted to the colonists of New Jersey the
widest toleration. Enactments known as the Duke's Laws, issued in 1665 by an
assembly which met on Long Island at the call of Governor Nichol, declared that
no person professing a belief in Christianity should be molested for his
judgment in matters of religion. The same principles were again
promulgated in 1665, in the charter of liberties established by the assembly,
acting under the Duke of York. Charles II., in his charter of
1667, authorized the proprietaries of Carolina to accord religious liberty to
non-conformists who did not by their non-conformity disturb the civil peace of
the province. Massachusetts, in 1691, passed an act benefiting all but Roman
Catholics; and the Quaker, William Penn, gave his colony, ten years later, a
law guaranteeing freedom of conscience. Toleration similar to that of
Massachusetts was provided in the charter granted by George II. to Georgia in
Thus when the Constitution of the United States was formulated, the
principle of religious freedom had been for some time gathering strength.
Partly from this cause, and probably yet more from the fact that no one
Christian body was in sufficient numerical predominance to make an
ecclesiastical establishment of it for the nation a political possibility, it
was enacted; "Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof." In Article
VI. of the Constitution it had been laid down already: "No religious test shall
ever be required as a qualification to any office or public trust under the
United States," a reference to the English Test Act of 1673.
The next provision in Article I. of the amendments relates to freedom of
public utterance and the press. The invention of printing in the fifteenth
century brought with it a censorship, which was in the hands of the
ecclesiastical power throughout Europe. After the Reformation, this censorship
devolved, in England, upon the crown; and a licenser was regularly appointed
whose imprimatur was required for the lawful publication of any writing.
Printing was regulated further by royal proclamations and grants of
privilege. The unlicensed issue of anything deemed seditious or
slanderous was punished by mutilation and death. And in the
reigns of the first two Stuarts, political and religious discussion was
vigorously repressed by the Star Chamber. The Long Parliament used the weapon
of censorship on the lines laid down by that obnoxious court, with such
severity as to call forth from John Milton the Areopagitica, denouncing
the suppression of truth by a licenser, and appealing for "the liberty to know,
to utter, and to argue freely according to conscience, above all
liberties." After the Restoration, the Licensing Act, based upon
the former parliamentary ordinances, was established for a period of three
years, placing the regulation of printing in the control of the government of
Charles II. The act was continued by repeated renewals until
1679; and was reaffirmed in 1685 by James II. for a term of
seven years, and again, in 1692, by William and Mary. Efforts further to revive
it proved unsuccessful, and it expired in 1694. From the latter date censorship
has formed no part of English law. This emancipation, having
such vast results in later times, attracted slight attention at the moment. And
in fact, though theoretically free, the press was still molested not a little.
It steadily rose in influence, and in the first thirty years of George III.
attained the beginnings of its present greatness.
The last clause of Amendment I. deals with the right of petition. For
many generations the exercise of the right was practically limited to redress
of grievances, but just before the time of the Commonwealth, petitions on
political subjects came into being, and many such were presented to Charles I.
and to the Long Parliament. There was some intimidation by numerous bodies of
petitioners, during that stormy period, and it was probably the memory of this
that caused Charles II. to restrain, or rather to regulate, the right in such
manner as to protect the government. In the Bill of Rights of William and Mary,
the privilege received sanction in the declaration: "It is the right of the
subject to petition the king; and all commitments and prosecutions for such
petitioning are illegal." The present practice dates from 1779,
just previous to the establishment of the American Constitution, when a widely
organized attempt was made to procure the adoption of a certain measure in
Parliament, by presenting numerously signed petitions from every part of
England. This may properly be considered the beginning of the modern system of
petitioning by which public measures and matters of public policy have been
urged upon the attention of Parliament. The privilege came into special
prominence in the colonies at the Revolutionary epoch, the Congress of 1774
distinctly claiming it in the Declaration of Rights: "They [the colonists] have
a right peaceably to assemble, consider grievances, and petition the king, and
that all prosecutions prohibiting proclamations and commitments for the same
The second amendment deals with the question of a trained militia, and
the right of the people to bear arms, — a right involving the latent power
of resistance to tyrannical government. From prehistoric days right to bear
arms seems to have been the badge of a Teutonic freeman, and closely associated
with his political privileges. Such armed freemen made up the military host of
the tribe. During Saxon times in England, there was a fyrd, or national
militia, service in which was one of the three duties —
trinoda necessitas — to which every alodial proprietor was subject.
This is met in full vigour long after the Norman Conquest, working its way
through the superstratum of feudalism. It continued side by side with the
feudal system, until, under Henry III. and Edward I., the two were united in a
general national armament. By the law known as the Assize of Arms, in 1181,
every freeman was required to provide himself with a doublet of mail, iron
skull-cap, and lance. In the reign of Queen Mary, this law was altered to
provide for arms of a more modern sort. James I. abrogated
it. But although the militia languished for awhile, as the
standing army grew in efficiency, it was restored to vigour in 1757. The Bill
of Rights provided: "The subjects which are Protestants may have arms for their
defence, suitable to their conditions, and as allowed by
Upon this is based the second amendment to the Constitution, which
reads: "A well-regulated militia being necessary for the security of a free
state, the right of the people to keep and bear arms shall not be
infringed." And concerning it, Judge Cooley remarks: "It was
adopted, with some modification and enlargement, from the English Bill of
Rights of 1688, where it stood as a protest against arbitrary action of the
late dynasty in disarming the people, and as a pledge of the new rulers, that
this tyrannical action should cease. The right declared was meant to be a
strong moral check against the usurpation of arbitrary power by rulers, and as
a necessary and efficient means of regaining rights temporarily overturned by
The third amendment deals with the quartering of the troops on private
citizens, a provision which speaks for itself, and the object of which is to
secure the enjoyment of the great right of the common law, that a man's house
shall be his castle, privileged against civil and military intrusion. Among the
tyrannies objected to in the Petition of Right of the time of Charles I. is,
that "of late great companies of soldiers and mariners have been dispersed into
divers counties of the realm, and the inhabitants, against their wills, have
been compelled to receive them into their houses, and there to suffer them to
sojourn, against the laws and customs of this realm, and to the great grievance
and vexation of the people." By a law of Charles II. it was
enacted "that no officer, military or civil, or other persons shall quarter or
billet any soldier upon any inhabitant of this realm, without his consent, and
that every such inhabitant of this realm may refuse to quarter any soldier,
notwithstanding any order whatsoever." Nevertheless, a complaint
is to be found in the Bill of Rights, that James II. had violated fundamental
liberties of the realm by, among other things, "quartering soldiers contrary to
law," and a similar complaint against both king and Parliament
is recorded in the Declaration of Independence: "He [George III.] has combined
with others ... giving his assent to their pretended legislation, for
quartering large bodies of armed troops among us." The language of the
constitutional amendment is: "No soldier shall, in time of peace, be quartered
in any house without the consent of the owner, nor in time of war, but in a
manner to be prescribed by law."
The fourth amendment touches upon the question of protection against
civil search without formal warrant, and the subject of general warrants.
The warrant — the paper which authorizes so grave an act as
depriving a citizen of personal liberty — is necessarily surrounded with
safeguards to protect the private individual against unjust and arbitrary
police measures. The English race has been insistent with reference to these
safeguards, and the warrant, as we now have it, is a characteristically English
institution. A warrant must always name the person against whom it is directed.
A general warrant, i.e. one that does not name the person, is contrary
to English freedom. But the latter point was not established
until just before the American Revolution, — the illegal custom of the
arresting of persons on general warrants lingering even into the reign of
George III., when it received its death blow in the famous case of Wilkes. The
question was raised by the printing of the libellous Number Forty-Five of the
North Briton, the authorship of which was at first unknown. Lord
Halifax, one of the secretaries of state, issued a general warrant describing
no individual, but empowering the police to take whomever they might think
guilty; which resulted in the arrest of many innocent persons, and finally,
among them, of the culprit himself, — with seizure of his
papers. He resisted on the ground that he had not been described
in the warrant. And after litigation which aroused the excited sympathy of both
England and the colonies, he won legal decision in his favour, and obtained
damages against those who, on a general warrant, had invaded his
liberties. The cause of freedom was vindicated. The courts
decided against the validity of general warrants, and the decision was
confirmed by the House of Commons and sustained by popular opinion. The
amendment to the Constitution reads: "The right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no warrants shall issue, but upon probable
cause, supported by oath or affirmation, and particularly describing the place
to be searched, and the person or things to be seized." Amendments V. to X.
inclusive read as follows: —
Article V. "No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or indictment of a grand
jury, except in cases arising in the land and naval forces, or in the militia,
when in actual service in time of war or public danger; nor shall any person be
subject for the same offence to be twice put in jeopardy of life or limb; nor
shall be compelled in any criminal case to be a witness against himself, nor be
deprived of life, liberty, or property, without due process of law; nor shall
private property be taken for public use, without just compensation."
Article VI. "In all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial, by an impartial jury of the State or
district wherein the crime shall have been committed, which district shall have
been previously ascertained by law, and to be informed of the nature and cause
of the accusation; to be confronted with the witnesses against him; to have
compulsory process for obtaining witnesses in his favour, and to have the
assistance of counsel for his defence."
Article VII. "In suits at common law, where the value in controversy
shall exceed twenty dollars, the right of trial by jury shall be preserved, and
no fact tried by a jury shall be otherwise re-examined in any court of the
United States than according to the rules of the common
Article VIII. "Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted."
Article IX. "The enumeration of the Constitution, of certain rights,
shall not be construed to deny or disparage others retained by the people."
Article X. "The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to the States
respectively, or to the people."
The provisions in these articles, intended to assure criminal justice,
are mainly from the English common law. The expression, "twice put in jeopardy
of life or limb," has descended from days when sanguinary punishments were
frequent. The clause, "nor shall be compelled in any criminal case to be a
witness against himself," was there placed to prevent repetition of the
inquisitorial proceedings once practised in England. The requirement, that just
compensation be made for private property taken for public uses, rests upon
Magna Charta; as does also the provision for speedy trial, and that no person
be "deprived of life, liberty, or property without due process of
The common-law origin and force of the claims in the sixth amendment
requiring that the accused be informed of the nature and cause of the
accusation, and be confronted with witnesses against him, is so understood and
admitted in practice, that surprise has been occasioned that these
specifications should have been thought needful. Of the succeeding provisions
of this article for "compulsory process of obtaining witnesses in his favour
and to have the assistance of counsel in his defence," the same cannot be said.
For it was a strange old practice, derived from the Roman civil law, to allow a
party accused of capital offence no opportunity to clear himself by the
testimony of witnesses in his favour. The practice was denounced by Sir Edward
Coke as unjust; and soon after the accession of James I., the House of Commons
carried, in spite of opposition from the crown and upper house, a clause
providing that in certain cases witnesses might be sworn for, as well as
against, the accused. By a statute of William and Mary, the same principle was
established for cases of treason; and in the reign of Queen
Anne, this was extended. Yet, at the period of the construction
of the American Constitution, the law did not allow the privilege in ordinary
capital cases; and the amendment, in extending it to all classes of criminals
without restriction, was, therefore, an important improvement upon the usage of
the mother-country. Another singular English deficiency — the failure in
certain circumstances to give a prisoner under capital accusation the benefit
of counsel for his defence — was supplied in the American Constitution by
the guarantee of counsel in all cases.
The eighth amendment treats of excessive bail and punishment, and is
simply a transcript of a clause in the Bill of Rights framed at the Revolution
of 1688. Its object is to warn the national government against such proceedings
as took place in England during the arbitrary Stuart period, — when a
demand for enormous bail was often made against persons obnoxious to the court;
who, failing to procure this, were thrown into prison. Excessive fines and
amercements were also occasionally imposed, and vindictive and cruel
punishments meted out. The clause in the Bill of Rights from which the
amendment was drawn specifies: "That excessive bail ought not to be required,
nor excessive fines imposed; nor cruel and unusual punishment
We come, in conclusion, to trial by jury — as provided in Article
III. of the Constitution for criminal cases; and in the amendments, for
criminal cases and civil actions alike — one of the most characteristic
elements of the American constitutional inheritance from England.
The origin of this "bulwark of constitutional liberty" has been the
topic of a great deal of learned discussion and of many antagonistic
theories. Probably the jury in its earliest form, that of a body
of sworn recognitors, was introduced into England by the Normans, they having
borrowed it from the Franks. It is traceable to the capitularies of the
Carolingian kings, and possibly through these, to the fiscal regulations of the
Theodosian Code, — thus having some affinity to the Roman
jurisprudence. But although an importation, the system gained
its real development in England alone, and gradually ceased to exist in
Normandy and in the rest of France. From a simple beginning at the Conquest, it
was consolidated in the reign of Henry III., and became one of the settled
institutions of the land, in close relationship with the old Saxon procedure of
the shiremoot. This king, who has been called its father, applied it to every
variety of fiscal and legal transaction; and down to much later days it was
used largely in the assessment of taxation. The Constitutions of Clarendon give
the earliest record in statute law of its employment for criminal presentment
and civil inquest. Later, in the Assize of Clarendon, provision
was made that twelve men from each hundred, with four from each township,
should be sworn to present all reputed criminals of their district in each
county court, — a jury of presentment, which may have been, in part, an
enlargement of a Saxon institution existing as far back as the reign of
Ethelred II., and which, as regulated by the Articles of Visitation of Richard
L, gave rise to the grand jury of modern times. From a desire to still further
promote the security of justice, there arose a procedure of having the
testimony of this body examined by a second body — the petit jury —
and this procedure eventually became settled usage.
But at first the process of trial by jury was different in many respects
from that with which we are now familiar. Palgrave states this difference with
admirable clearness. "Jurymen in the present day are triers of the issue; they
are individuals who found their opinion upon the evidence, whether oral or
written, adduced before them; and the verdict delivered by them is their
declaration of the judgment which they have found.
But the ancient jurymen were not impanelled to examine into the
credibility of evidence; the question was not discussed and argued before them;
they, the jurymen, were the witnesses themselves, who, of their own knowledge,
and without the aid of other testimony, afforded their evidence respecting the
fact in question to the best of their belief. In its primitive form a trial by
jury was therefore only a trial by witnesses." That is to say,
the jurors decided from their own personal knowledge of the facts, or from
tradition, without other witnesses than themselves. And, incidentally, this
explains an important point, — namely, why the trial was properly held in
the locality of the accused's residence, and the jury chosen from the vicinage
in which the question arose. The development by which jurors
ceased to be witnesses, and became judges of the fact, is common to both the
criminal and the civil jury, and is traceable from the time of Edward
III. Out of the difficulty of securing twelve men acquainted
with the matter in trial and able to give a unanimous verdict based on personal
knowledge, grew the custom of permitting the jurors who were first summoned to
add to their number persons having such knowledge. And later on,
jurors without information were separated from those possessing it, the former
becoming judges of evidence only, and the latter witnesses; a decision being
given by the former upon the testimony of the latter, and the law in the case
being decided by the presiding official in the king's name. By
1450 we have distinct evidence that the mode of procedure was the same as that
in modern use, though in occasional instances the ancient
functions of jurors lingered as late as to the accession of the House of
The Declaration of Independence complains of the British government "for
depriving us in many cases of the benefits of trial by jury," and for
"transporting us beyond seas to be tried for pretended offences."
"Trial by jury," it has been said, "is justly dear to the American
people. It has always been an object of deep interest and solicitude, and every
encroachment upon it has been watched with great jealousy." "The
privilege in criminal cases has been looked upon as a necessary part of the
liberties of the people, and a sentiment attaches to it which will scarcely
suffer its value to be questioned. Every State constitution preserves its suits
in the State courts, and every new and revised constitution repeats the
guaranty of it. Even the common-law requirement of unanimity in the verdict,
which is of more than doubtful value, is retained without inquiry or question,
because it has existed from time immemorial."
The proud words of retort to Montesquieu, with which Blackstone ends his
panegyric on the jury system, are as applicable to America as to England; "A
celebrated French writer, who concludes that Rome, Sparta, and Carthage have
lost their liberties, therefore those of England in time must perish, should
have recollected that Rome, Sparta, and Carthage, at the time when their
liberties were lost, were strangers to the trial by
Whatever may be in store for America, her past is closely
inwrought with that of England. Her laws, as her language, have descended to
her. For, though our ancient Teutonic race, in these new days, may encircle the
globe, and find itself scattered on all continents and beside all seas, it will
have ever one common home.
The Constitution of the United States possesses much that is peculiar to
itself. It is not the English Constitution of any age. Yet it is "heir of all
the ages" of English history. For the most part, as we have seen, it applies to
new conditions, time-tried principles of free government.
It is well thus to call to mind that what is best and noblest in
American governmental institutions is safely founded upon an historic past. The
oak of English freedom that the fathers of America transplanted, has grown old
and gnarled and stanch and great of girth, and its firm roots have struck down
deep into the soil. Though clouds of social and political problem may lower
above it, it recks not of momentary sunshine or passing tempest, — that
sturdy oak, bounded by the succeeding circles of the centuries, and growing
only more strong with the ongoing of the years.
 "The common law of England, so far as it was applicable
to our circumstances, was brought over by our ancestors upon their emigration
to this country. The Revolution did not involve in it any abolition of the
common law. It was rather calculated to strengthen and invigorate all the first
principles of that law, suitable to our state of society and jurisprudence. It
has been adopted, or declared in force, by the constitutions of some of the
States, and by statute in others. And where it has not been so explicitly
adopted, it is nevertheless to be considered as the law of the land, subject to
the modifications which have been suggested, and to express legislative
repeal." — Kent, Commentaries on American Law, II. 28.
 Kent summarizes the facts thus: "It was a provision in
the charters of the Virginia settlers granted by James I. in 1606 and 1609, and
in the charter to the colonists of Massachusetts in 1629; of the Province of
Maine in 1639; of Connecticut in 1662; of Rhode Island in 1663; of Maryland in
1632; of Carolina in 1663; and of Georgia in 1732; that they and their
posterity should enjoy the same rights and liberties which Englishmen were
entitled to at home. Such privileges were implied by the law, without any
express reservation. The like civil and religious privileges were conceded to
New Jersey by the proprietaries in February, 1665." — Commentaries on
American Law, 12th ed. II. 2, n.
 "They insisted that they brought with them into this
country the privileges of English freemen, and they defined and declared those
privileges with a caution, sagacity, and precision that have not been surpassed
by their descendants. Those rights were afterwards, in the year 1692, on the
receipt of their new charter, reasserted and declared." — Ibid. II.
Laws of New York, 1708.
Journals of Congress, I. ed., Phila. 1800.
 Regarding attainder and ex-post facto laws, Mr.
Justice Miller remarks: "The prohibition against passing bills of attainder is
one which was intended to guard against a danger which has passed out of the
memory of the present generation. Up to the time of the formation of this
Constitution, the Parliament of England had been in the habit, by legislative
enactments, of declaring individuals attainted for treason, for murder, for
conspiracies, and further crimes, especially crimes against the government.
This declaration of attainder by the legislative body was accompanied, either
impliedly, or by the express terms of the bill, with a deprivation of all
rights of property and of all capacity to transmit property by descent, or
acquire it in that manner, in addition to punishments such as death and other
cruelties. This kind of proceeding was had, not in a court of justice, ... but
the legislature, the Parliament, either with or without inquiry, or with such
insufficient inquiry as they chose to make, generally in the absence of the
victim, proceeded at once to make charges, decide upon the guilt of the party,
and announce the punishment, thus acting in all instances as the sovereign, the
legislative, and judicial power at the same time." It was at one time suggested
that ex-post facto laws, "equally forbidden to the general government
and to the States, might be held to be any law which affected the rights of a
person civilly or criminally after those rights had been acquired or
established in accordance with existing laws. This, however, is a mistake, and
the phrase 'ex-post facto laws ' has application alone to laws which
relate to crimes and criminal proceedings, because it was used in that limited
sense by our English ancestors long previous to the formation of the
Constitution. The contemporary accounts of its adoption show that such was the
sense in which the Convention understood it." — Lectures on the
Constitution of the United States, 584-586. The Supreme Court of the United
States has decided for this interpretation, in cases which have come before it,
affirming the English origin, as it constantly does in its decisions on
constitutional and legal questions. See Calder v. Bull, 3 Dall.
386; Watson v. Mercer, 8 Pet. 88, no; Satterlee v.
Matthewson, 2 Pet. 380; Kring v. Missouri, 107 U. S.
 See Federalist, No. 84.
 "With a view of carrying into effect popular will, and
also of disarming the opponents of the Constitution of all reasonable grounds
of complaint, Congress, at its very first session, took into consideration the
amendments so proposed; and by a succession of supplementary articles provided,
in substance, a bill of rights, and secured by constitutional declarations most
of the other important objects thus discussed" in the conventions of the States
that adopted the Constitution. "These articles (in all twelve) were submitted
by Congress to the States for their ratification, and ten of them were finally
ratified by the requisite number of States, and thus became incorporated into
the Constitution." — Story, Commentaries on the Constitution of the
United States, I. 211, § 303.
 In the conventions of the States which ratified the
Constitution, the criticism of that document for its omission of a bill of
rights found expression in specific recommendations, urged with more or less
zeal and determination. The amendment embraces recommendations of the
conventions of New Hampshire, Virginia, and North Carolina.
 1 Will. and Mary, c. 18.
 5 Geo I. c. 4.
 This was done by means of the Annual Indemnity Acts
passed in favour of those who had not qualified themselves under the
Corporation and Test Acts. The first Indemnity Act was passed in 1727. With few
exceptions, similar acts were passed every year thereafter, until the Test and
Corporation Acts were repealed in 1828.
 1 Geo. I. c. 55, and 26 Geo. II. c. 33.
Chamberlain of London v. Allen Evans,
 Cobbett, Parliamentary History, XVI. 313-327.
Among the strong sayings of Lord Mansfield in this connection was the remark:
"Persecution for a sincere, though erroneous, conscience, is not to be deduced
from reason or the fitness of things."
History of the English People, V. 216.
 This action is to be found in the code of laws of the
first legislature under the first charter. The legislators claim "to be men of
different consciences, and not one willing to force another." The code ends
with the words: "These are the laws that concern all men, and these are the
penalties for the transgression thereof, which by common consent are ratified
and established throughout this whole colony; and otherwise than this, what is
herein forbidden, all men may walk as their consciences persuade them, every
one in the name of his God. And let the saints of the Most High walk in this
colony without molestation in the name of Jehovah, their God, for ever and
ever." — Rhode Island Colonial Records, I. 156-190. It has been
claimed that the charter of 1643, granted by Warwick, accorded religious
freedom; but ambiguity in the language of the charter leaves the question open
to doubt. See the text of this document in Poore, Constitutions, II.
1594, 1595; but see also the able argument of S. G. Arnold, History of the
State of Rhode Island, I. 200. Correspondence and early town laws show that
a sentiment favourable to religious liberty existed from the beginning of
colonial settlement. This sentiment was much influenced by Roger Williams. Not
improbably, Roger Williams, himself an Englishman, received impressions on the
subject from the Dutch-English Anabaptists, though that seems not to be
 Thompson, History of Long Island, I. 132, ed.
 Douglas Campbell observes: "Of all the thirteen
[original States], two and two only — Virginia and New York —
embodied in their [new State constitutions] guarantees of religious liberty....
The other States retained religious tests for their officials, or in some form
made religious discriminations. Virginia, in 1776, issued a Declaration of
Rights, which, it is claimed, formed part of her constitution, laying down the
principle" of religious liberty. "Still the State retained its established
Church until 1785, and in various other ways fell short of practising full
religious liberty. New York, however, in its first constitutions adopted in
1777, proceeded at the outset to do away with the established Church.... Then
followed a section much broader and more explicit than that of the Virginia
Declaration of Rights." — Puritan in Holland, England, and America,
I. 250. This author claims that the New York constitutional enactment is the
basis of American religious liberty, and because it was an enactment of New
York, gratuitously assumes it to be of Dutch origin, — though in truth it
was but a logical outcome of the laws of the Duke of York, 1665, adopted under
English influence. So far as the American Constitution is concerned, the first
amendment seems to have originated in the rivalry of the numerous religious
bodies on American soil, and to have been but faintly traceable to any foreign
influence. See action of New Hampshire convention
Constitution of the United States, Amendment
 25 Car. II. c. 2. The famous Test Act was passed "for
preventing dangers which may happen from Popish recusants." It worked much
 "All printing was interdicted elsewhere than in London,
Oxford, and Cambridge; and nothing whatever was allowed to be published until
it had first been 'seen, perused, and allowed' by the Archbishop of Canterbury,
or the Bishop of London, except only publications by the queen's printer, to be
appointed for some special service, or by the law printers, for whom the
license of the Chief Justices was sufficient." — Taswell-Langmead,
English Constitutional History, 766.
 St. 23 Eliz. c. 2. See cases of Stubbe, 1579; Udal,
1591; Barrow and Greenwood, 1593; Penry, 1593.
 Milton, Areopagitica, 73, 74, Arber's
Reprints. In the British Museum are over 30,000 political newspapers and
pamphlets that were printed in the twenty years between 1640 and the
Restoration of Charles II. Douglas Campbell notes that Milton in no way refers
to Holland or to Dutch ideas in advocating liberty of the press. Puritan in
Holland, England, and America, II. 344, n. 2.
 13 and 14 Car. II. c. 33.
 "After the Licensing Act had been temporarily suffered
to expire in 1679, the twelve judges, with Chief-Justice Scroggs at their head,
declared it to be criminal at common law to publish anything concerning the
government, whether true or false, of praise or censure, without the royal
license. All newspapers were in consequence stopped; and the people were
reduced, for political intelligence and instruction, to two government
publications.... In the absence of newspapers, the coffee-houses became the
chief organs through which the public opinion of the metropolis vented itself,
while the inhabitants of provincial towns, and the great body of the gentry and
country clergy, depended almost exclusively on news-letters from London for
their knowledge of political events." — Taswell-Langmead, English
Constitutional History, 768.
 Lord Macaulay declared that the emancipation of the
press had "done more for liberty and for civilization than the Great Charter or
the Bill of Rights." — History of England, IV. 542.
 It is not impossible that the example of Holland has
aided the progress in America of the idea of freedom of the press. But although
Douglas Campbell (Puritan in Holland, England, and America) strenuously
asserts that Holland's example has so aided, he signally fails to establish the
point, and no one else has really attempted to establish it. As a matter of
fact, censorship of the press existed in the American colonies. In New England
this lasted till about 1755. See Tyler, History of American Literature,
I. 113. Thus, in 1723, Benjamin Franklin was forced to leave Massachusetts
for Pennsylvania on account of a libel, and his brother was imprisoned. A
declaration of the principle of entire freedom of publication was incorporated
in the second constitution of Pennsylvania, in 1790, only just previous to the
amendment to the national Constitution referred to in the text. This action of
Pennsylvania distinctly referred to English laws and usage. In 1805 and in 1821
New York recognized this principle. Other States have made similar
 1 Will. and Mary, Sess. 2, c. 2.
 The fyrd, the armed folkmoot of each shire, was
originally the only military organization known to the English.
 4 and 5 Phil. and Mary, c. 2 and c. 3.
 1 Jac. c. 25, § 46.
 1 Will. and Mary, Sess. 2, c. 2. Blackstone remarks that
this declaration providing for the possession of arms "is a public allowance,
under due restrictions, of the natural right of resistance and
self-preservation, when the sanction of society and the laws are found
insufficient to restrain the violence of oppression." —
Commentaries, I. 154.
 The convention of New Hampshire which acted on the
adoption of the national Constitution, proposed as an amendment: "Congress
shall never disarm any citizen, unless such as are, or have been, in actual
rebellion." The conventions of Virginia and New York proposed: "That the people
have a right to keep and bear arms; that a well-regulated militia, composed of
the body of the people, trained to arms, is the proper, natural, and safe
defence of a free state"; and "that any person religiously scrupulous of
bearing arms, ought to be exempted, upon payment of an equivalent to employ
another in his stead."
Principles of Constitutional Law, 270.
 3 Car. I. c. I, § 6.
 31 Car. II. c. 1.
 1 Will. and Mary, Sess. 2, c. 2. The provisions of this
statute and of the Petition of Right against the billeting of troops are
suspended every year by authority of Parliament, in the Mutiny Act, which
accords express permission to billet soldiers in inns and
 See Lieber, Civil Liberty and Self-Government,
 "There was a libel, but who was the libeller? Ministers
knew not, nor waited to inquire, after the accustomed forms of law; but
forthwith, Lord Halifax, one of the secretaries of state, issued a warrant,
directing four messengers, taking with them a constable, to search for the
authors, printers, and publishers, and to apprehend and seize them, together
with their papers, and bring them in safe custody before him. No one having
been charged or even suspected, no evidence of crime having been offered, no
one was named in this dread instrument. The offence only was pointed at; not
the offender. The magistrate, who should have sought proofs of crime, deputed
this office to his messengers. Armed with their roving commission, they set
forth in quest of unknown offenders; and unable to take evidence, listened to
rumours, idle tales, and curious guesses. They held in their hands the liberty
of every man whom they were pleased to suspect. Nor were they triflers in their
work. In three days they arrested no less than forty-nine persons on suspicion,
— many as innocent as Lord Halifax himself.... The messengers received
verbal directions to apprehend Wilkes, under the general warrant. Wilkes, far
keener than the crown lawyers, not seeing his own name there, declared it 'a
ridiculous warrant against the whole English nation,' and refused to obey it.
But after being in custody of the messengers for some hours, in his own house,
he was taken away in a chair, to appear before the secretaries of state. No
sooner had he been removed, than the messengers, returning to his house,
proceeded to ransack his drawers, and carried off all his private papers,
including even his will and pocket-book." — May, Constitutional History
of England, II. 246, 247.
 Lord Chief Justice Pratt thus characterized the warrant:
"The defendant claimed the right, under precedents, to force persons' houses,
break open escritoires, and seize their papers, upon a general warrant,
where no inventory is made of the things thus taken away, and where no
offenders' names are specified in the warrant, and therefore a discretionary
power given to messengers to search wherever their suspicions may chance to
fall. If such a power is truly invested in a secretary of state, and he can
delegate this power, it certainly may affect the person and property of every
man in this kingdom, and is totally subversive of the liberty of the
 Mr. Justice Miller, of the United States Supreme Court,
says: "The first thing to be observed about this article is that it prescribes
this mode of trial in 'suits at common law.' It does not use the same
words as the clause extending the judicial power 'to all cases in law
and equity.' It is to be inferred, therefore, that trial by jury, as imposed by
the Constitution, has relation to the common law as it was understood in
England and to the right to such a trial in that class of cases." —
Lectures on Constitution of the United States, 492.
 The expression "due process of law " is a technical one.
"It has long been in use among law writers, and in judicial decisions, as
implying correct and orderly proceedings, which are due because they observe
all the securities of private right which are applicable in the particular
case. In this sense it is synonymous with 'law of the land,' as used in the
famous twenty-ninth chapter of Magna Charta.... The identity of the two in
meaning and purpose is now well settled." — Cooley, Principles of
Constitutional Law, 222. "As to the words from Magna Charta, after volumes
spoken and written with a view to their exposition, the good sense of mankind
has at length settled down to this: that they were intended to secure the
individual from the arbitrary exercise of the powers of government,
unrestrained by the established principles of private right and distributive
justice." — Bank of California v. Okely, 4 Wheat. 235. See
also Murray's lessee v. Hoboken Land Co., 18 How. 272, 276;
Taylor v. Porter, 4 Hill, (N.Y.) 140, 143; Hoke v.
Henderson, 4 Dev. (N.C.) 1; Kinney v. Beverley, I Hen.
& M. (Va.) 531; James v. Reynolds, 2 Tex. 250; Norman
v. Heist, 5 W. & S. (Penn.) 171; Davidson v. New
Orleans, 96 U. S. Rep. 97; Webster in Dartmouth College v.
Woodward, 4 Wheat. 518; Webster, Works, V. 487.
 7 Will. III. c. 3. This statute provides that persons
indicted for high treason shall have a copy of the indictment delivered to them
five days at least before the trial, and a copy of the panel of the jurors two
days before the trial; that they shall be allowed the assistance of counsel
throughout the trial, and be entitled to process of the court to compel the
attendance of their witnesses, who must be examined on oath. It removes any
doubts as to the statute of Edward VI., by requiring the oaths of two lawful
witnesses, unless the prisoner shall willingly, without violence, in open court
confess the charge, etc.
 7 Anne, c. 21.
 In the first State constitutions of Maryland, New
Jersey, Pennsylvania, Massachusetts, and Vermont, provision was made,
guaranteeing counsel in all cases, and from these State provisions the
amendment to the national Constitution came. This defect in the English law,
thus supplied by America, was remedied in the mother-country by statute 6 and 7
Will. IV. c. 114. See Cooley, Constitutional Limitations, 330-338.
 1 Will. and Mary, Sess. 2, c. 2.
 Philipps, On Juries, and Probert, On the
Ancient Laws of Cambria, claim that the jury system originated among the
Welsh, from whom the Anglo-Saxons borrowed it. Selden, Spelman, Coke, Turner,
Philipps, and G. L. von Maurer regard it as an outcome of Anglo-Saxon
invention. Bacon, Montesquieu, Blackstone, Savigny, and Nicholson —
preface to Wilkins, Anglo-Saxon Laws — maintain that it is an
importation from primitive Germany. Wormiers and Worsaae think it came from the
Danes, who in turn derived it from the Norsemen. Hickes, Reeves, and others
claim a Norse origin through the Normans; and Conrad Maurer points to a north
German source. Of writers who admit its Norman origin, Daniels thinks the
Normans found it in France, Möhl carries it back to the canon law of the
Church, Meyer derives it from Asia by way of the Crusades, and Maciejowski
derives it from the Slavic neighbours of the Teutonic invaders of England.
Entstehung der Schwurgerichte, 11-19. Bourguignon says despairingly,"son
origine se perd dans la nuit des temps." — Memoire sur le Jury. See
Forsyth, History of Trial by Jury; Gneist, Self-Government;
Glasson, Hist. du Droit et des Inst. de l'Angleterre, etc. Bishop Stubbs
— Constitutional History of England — and other recent
authorities accept the Carolingian and Theodosian origin, as stated in
Palgrave, English Commonwealth, corrected and adjusted by Dr. Brunner,
Entstehung der Schwurgerichte.
 See Smith, Dictionary of Greek and Roman
Antiquities: "Codex Theodosianus." Brunner cites the Theodosian Code:
"Super vacantibus ac caducis ... certi etiam dirigantur qui cuncta solerter
inquirant et cujus fuerint facultates et si nemo eas sibi jure nititur
retentare. Ac si locum fisco factum esse claruerit occupatis prius bonis et
rerum omnium descriptione perfecta ...; " Codex Theodosianus, X. 10, L.
11. "Ex privatorum ... sollicitu dine contractum ... illis ... personis a
quibus publici numeris injuncta curantur, nullum formitem calumniae patimur
litis accendi. Cur enim continentiam venditionis alienae inquisitio palatina
rimetur?" Ibid. L. 29.
 A.D. 1164.
 A.D. 1194.
English Commonwealth, I. 243.
 "The testimony of the neighbourhood was appealed to for
the purpose of deciding questions which related to matters of general concern."
— Forsyth, Trial by Jury, 92.
 Year Books, 25 Edw III.
 "The proceeding by assize was, in fact, merely the sworn
testimony of a certain number of persons summoned to give evidence upon matters
within their own knowledge. They were themselves only witnesses. If all were
ignorant of the facts, a fresh jury had to be summoned; if some of them only
were ignorant, or if they could not agree, others were to be added — a
process subsequently called afforcing the jury — until a verdict
could be obtained from twelve unanimous witnesses." — Taswell-Langmead,
English Constitutional History, 166.
 As a result of this "witnesses were examined and
cross-examined in open court; the flood gates of forensic eloquence were
opened, and full scope given to the advocate to exercise his ingenuity and
powers of persuasion on the jurors, to whose discretion the power of judging on
matters of fact was now entrusted." — Starkie, "Trial by Jury," Law
Review, No. IV., August, 1845.
 Fortesque, De Laudibus Legumæ Angæ,
Parsons v. Bedford, 3 Pet. 433, 446.
 Cooley, Principles of Constitutional Law, 237,
Commentaries, Book III. 379.
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