Free government in England and America: containing the Great Charter, the Petition of Right, the Bill of Rights, the Federal Constitution

Front matter

Glass

Book

Seal of Magna Charta.

Chapter I. Free Government — Its Character And Office

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It is a State of Laws — The British System — Its Rigid Enforcement — The Union an Elective System — Its Elective Preservation — Its Popular Failure — Organic Laws — Their Office — Certain Rights of Persons never Enter into Government — Too much Power a Source of Weakness, . . . . . . 17

Chapter II. The State And Federal Governments

Their Unity — The State Exclusive Judge of Prohibited Powers — The Union not a Civil Polity — Not a Democracy — Persons and Majorities — How Regarded — The Slavery Question — Its Alleged Incompatibility with Free Institutions — The Law of its Existence and Extirpation, . 36

Chapter III. The Judiciary

Its Office in a Government of Laws — Its High Trusts and Duties — Suspected and Convicted Persons — How Regarded — Habeas Corpus — Extra-Constitutional Measures — Device for Violating Laws — Bold Usurpations — The Union a Brotherhood — Accountability of Federal Officials to the Judiciary — The Equilibrium of the System, . . . .51

CHAPTER IV. THE habeas corpus act

Its Legal Office — Necessary to Free Government — How Suspended — The Right of the President and Congress Denied — Originated with Us — Subordination of the Military Power — Constitution Suspended by Overthrow of Judiciary — Military Government a Usurpation — Habits

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and Traditions a Part of our System — Demoralizing Effects of Military Kule upon the Civil Power, . . . . . .19

Chapter V. Martial Law

The Guardians of Civil Liberty should understand what is Martial Law — Its Origin and Original Powers in England — The Extension of the Civil Establishment — Martial Law confined after the Great Charter exclusively to the Military Service — Its Complete Subordination to the Civil Power by the Petition of Right — The English System Ours — Martial Law in the United States — Revolutions — Cromwell — His Military Government through Twelve Major-Generals — Where Laws Fail it is a Despotism — Exposition of Martial Law by the Supreme Court of the United States — Its Exposition in England by Lord Loughborough, 99

Chapter I. The Anglo-saxon System Op Local Sovereignties

Object of the Present "Work — Freedom Among the Anglo-Saxons — Eorls and Ceorls — Origin of the Distinction — Local Character of the Saxon System— The Tything and Frank-Pledge— The Hundred— The Burgh— The Shire — Illustration of County Court Proceedings — Origin of Legal Customs in the Folk-Courts — Constitution and Powers of the Wittenagemote — Constitution of the Saxon Empire — Decadence of the Saxon System, . . ... . . . . 12*7

Chapter II. The Feudal System Of Consolidated Military Power

Origin of the Feudal System — Nature of the Feudal Tenure of Land in Consideration of Military Service — Socage — Homage — Allegiance — Amount of Service — Scutage — Reliefs — Heriots — Fines on Alienation — Escheats — Aids — Wardship — Marriage— Conversion of Allodial Lands into Feudal Tenures — Serfdom — Establishment of Feudalism in England, . . . . . . . 142

Chapter III. England Under The Yoke

Necessities of Despotism — Suppression of the ADglo-Saxon System and Language — Confiscation — The New Forest and Forest Laws — Tyranny

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of the King over the Nobles — Exact Definition of Conquest — Remnants and Traditions of the Saxon System — Charters — Rufus — Henry I. — Stephen — Matilda — Henry II. — Richard II. — First Impeachment by Parliament, . . . . . . .161

Chapter IV. The Giving Of Magna Charta

State of the Kingdom at the Accession of John — Early Acts of his Reign — Murder of Prince Arthur — Refusal of the Barons to follow John into France — His Seizure of the Temporalities of Canterbury — Appointment of Langton to the Archbishopric — England under Interdict — The Kingdom given by the Pope to Philip of France — The Interdict Removed — John's Oath before receiving Absolution — Discovery of the Charter of Henry I. by Langton — The Barons Swear to Maintain it, and Demand that John shall Ratify it. — They Raise an Army — London Declares for the Barons — The Meeting at Runnymede — The Charter Granted — Its Character and Provisions — Recognition of the Right of Rebellion — Hume and Hallam on the Charter, . . . 1*76

Covenant op Security, ...... 204

Chapter V. The Rise Of Parliamentary Representation

Sufficiency of Magna Charta — Necessity of Further Guarantees — Power of Parliament in the Reign of John — Absence of the Representative Principle — Henry's Ratification of the Charter of King John — Blending of the Norman and Saxon Races — Henry's Mortgage of the Kingdom to the Pope — The Government Intrusted to Twenty-Four Barons — The Civil War — De Montfort's Parliament — Overthrow of De Montfort — First Constitutional House of Commons — Accession of Edward I. — His Confirmation of the Charter — Statute de Tallagio non Concedendo — Final Settlement of Parliamentary Representation, . . 229

Chapter VI

TRIAL BY JURY. — THE HIGH COURT OF STAR-CHAMBER. SLAVERY IN ENGLAND.

Observations on the Period from Edward I. to the Stuarts — Essential Feature of the Jury Trial — The Roman Jury Trial — Peculiarity of the English Jury Trial — Its Origin in the Saxon Courts — Compurgators — Recognitors — Trial by Peers in Magna Charta — Witnesses Called in Aid of Jurors under Edward III. — Modern Constitution of the Jury Settled under Henry IV. — Subsequent Changes — Blackstone on the Jury Trial — Court of Star-Chamber — Its Origin — How Settled under Henry VII. — Its Jurisdiction under Henry VIII. — Historical Discussion — Mode of Procedure — Its Abuses and Effects — Civil Jurisdiction of the Star-Chamber — Its Enormities Described by Clarendon — Obser- 1*

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vations — Saxon Slavery in England— general Remarks on Slavery — Account from Hallam of its Gradual Disappearance in England — Conclusion, ........ 246

Chapter VII

THE STUARTS. JAMES I.

Character of the Stuart Period — Accession of James — His Speech on Opening his Parliament — Definition of Tyranny — The Doctrine of Divine Right — Severities against Roman Catholics — Parliament in 1609 — Act for Compelling Oaths of Allegiance — The Commons Maintain their Right to Decide Election Returns — Parliamentary Privilege — Their " Apology " to the King — They Expel a Member at his Dictation — High Prerogative Speech of James to the Parliament in 1610 — Illegal Exaction of Tonnage and Poundage — Remonstrance of the Commons — Case of Dr. Cowell — Consideration of Grievances — Attempt at Union between England and Scotland, and at the Abolition of Feudal Tenures — Expedients of James for Raising Money— -The Undertaker's Parliament — Parliament of 1620-21 — James's Speech — Dispute of the Commons with the King on Adjournment — Parliament Reassembled — The Proposed Spanish Match — Petition of the Commons — Angry Letter of James to the Speaker — Second Petition and Remonstrance of the Commons — James's Answer — Protestation of the Commons — It is Torn out from the Record by the King — Punishment of Members — Parliament of 1623 — Monopolies, together with the Suspending and Dispensing Powers of the King, Abolished— Concluding Observations, 280

CHAPTER VHI.

THE STUARTS, CONTINUED. — 'CHARLES I. FIRST THREE PARLIAMENTS TO THE

PETITION OP RIGHT.

Introductory Observations — First Parliament — Charles's Speech — Tonnage and Poundage Granted for One Year by the Commons — Illegal Collections of them by Charles — Hatred against Buckingham — Dissolution of Parliament— Exactions and Forced Loans — Second Parliament — Haughtiness of Charles — Preparation of the Commons to Impeach Buckingham — Commons Pass Supply Bills to be Granted when Grievances have been Heard — Unconditional Supply Demanded— Commons' Remonstrances — Impeachment of Buckingham — Imprisonment of Diggs and Elliot — Abrupt Dissolution of Parliament — Renewed Exactions and Imprisonments — Expedition to Rochelle — Third Parliament — Unconciliatory Speech of Charles — Complaint of Grievances — Sir Peter Hayman — Resolutions of the Commons — Address to the King — The Petition of Right First Agitated — Charles Endeavors to Prevent Discussion, offering His Royal Promise to Maintain the Charters — Permission for a Bill Given — Speeches of Elliot and Coke — Conference with the Lords — Their Proposition — Outline of the Petition — Charles's Ambiguous Assent — Clerical Politics — Dr. Mainwaring — Charles Forbids Censure of Ministers — Excitement in the House Explanatory Message from the King — Regular and Final Passage of the Petition of Right— Joy of the People, . . .302

Petition op Right, ...... 325

Chapter IX

CHARLES I. FROM THE PETITION OP RIGHT TO THE GRAND REMONSTRANCE.

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Five Subsidies Granted to the King — Punishment of Dr. Main waring — Illegal Commission of Excise Cancelled — Remonstrance of the Commons Concerning Tonnage and Poundage — Parliament Prorogued — Charles's Speech — Reassembling of Parliament — Consideration of Grievances and Outrages — The King Consents to Tonnage and Poundage as a Parliamentary Grant — Further Irritations by the Star Chamber — Charles Commands an Adjournment — Resistance of the Commons — Their Protestation — Charles's Proclamation — Imprisonments — Dissolution — Remarks of Clarendon — Daring Proclamation by the King — Prosecutions of the Imprisoned Members — Disregard of Habeas Corpus by the Judges — Royal Exactions from the People — Feudal Oppressions and Forest Laws Restored — Ship Money — John Hampden — Charles's Doctrine of Military Necessity Sustained by the Judges in an " Extra-Judicial Opinion " — The Short Parliament — Grievances Considered — Supplies Demanded by the King — Answer of the Commons — Dissolution — The Long Parliament — Its Temper from the First — Unanimity of Lords and Commons — Late Proceedings of the King, and the Extra-Judicial Opinion of the Judges in Regard to Ship Money Declared Illegal — Monopolists and Patentees Excluded from Parliament — Humiliation of the King — Tenure of Judges' Appointments to be henceforth for Life Act for Triennial Parliaments — Act to Prevent Sudden Adjournments and Dissolutions — Charles Gives up his Claim to Tonnage and Poundage — Abolition of the Court of Star Chamber and High Commission Court — Ship Money, Forest Claims, and Feudal Exactions Abandoned — Observations — Satisfaction of Reasonable Men Among the Commons — Welcome of the King in London on his Return from Scotland — Puritanism, . . . ■ - . 329

CHAPTER X. CHARLES Is THE REIGN OF PURITANISM FROM THE GRAND REMONSTRANCE TO

THE END OF CONSTITUTIONAL LEGISLATION UNDER CHARLES.

The Grand Remonstrance Carried by a Puritan Majority of Eleven — Saying of Cromwell — Different Opinions Concerning the Remonstrance — Its Futility — Sketch of its Contents — Object and Determination of the Puritans — Their Exasperation of the King — Royal Impeachment and Imprisonment of Lord Kimbotton and the Five Members — Declaration of the Commons — Return of the Five Members — Separation of King and Parliament — His Eiforts at a Reconciliation — Implacability of the Puritans — Bishops Removed from Parliament — The " Root and Branch Bill" — Abolition— Militia Bill— The King Refuses His Assent — Message to the King from Parliament — His Answer — General Review — Puritan Despotism — Cromwell, . . . . .351

Chapter XI

CHARLES Hi THE RESTORATION. — ABOLITION OF THE FEUDAL TENURES. HABEAS

CORPUS ACT.

England Under Cromwell — Reaction from Puritanism at the Restoration — Tendency to Restore Absolutism — Moderation of the Royalists — the

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Feudal Tenures — Former Efforts to Abolish Them — TJbeir Final Abolition in this Reign — Habeas Corpus — Origin of the Name — Provision of Magna Cbarta — Historical Sketch — Author of the Bill — Its Reproduction in the United States — Its Twelve Provisions — Its Importance — Illustration from the Parallel History of France and England — Conclusion, ........ 367

Chapter XII

JAMES II. THE REVOLUTION. BILL OF RIGHTS. ACT OP SETTLEMENT.

Preliminary Observations — The Exclusion Bill — Whig and Tory — Laws against Romanists — James, at his Accession, Acknowledges their Obligation — Supplies Granted by Parliament for the Term of the King's Life — James Insists on Supplies for a Standing Army, but Declares that he has Broken and will Break the Test Laws — Answer of the Commons — Illegal Revival of the High Commission Court — Daring Declaration of Indulgence Published by the King — Execution of it — Trial of the Seven Bishops — Prince of Orange Lands — Flight of James — Meeting of Lords and Commons and the Common Council of London — Convention at Westminster — Joint Resolution of Lords and Commons — Settlement of the Crown on William and Mary — Substance of the Bill of Rights — Act of Settlement — Its Necessity — Substance of it — Conclusion, ....... 378

Bill of Rights, ....... 391

Act of Settlement, ....... 400

Chapter XIII. Colonial Constitutions

Introductory Observations — Constitutional Position of the Colonists — Law Of Nations on the Subject of Colonial Settlements : in Countries having Laws and Constitutions : in Countries not having Laws and Constitutions — Application of it to the Colonies — Their Interior Politics — Provincial Establishments — Proprietary Governments — Charter Governments — Mixed Government — Constitutions of the Colonies — Virginia — Plymouth Colonies — Massachusetts — New Hampshire — Maine — Connecticut — Rhode Island — Maryland — New York — New Jersey — Pennsylvania — Delaware — North and South Carolina — Georgia, . 403

Chapter XIV. The Anglo-saxon System In North America Dispute With England — Right

OF REVOLUTION.

Comparison of the Colonial with the Anglo-Saxon Settlements — Distinctness of the Colonies and its Causes — Different Times of Settlement — Distance—Navigation Laws — Religious Animosities — Political Antipathies — Necessity of the Revolutionary War — The New England Confederacy — Nature of the Controversy of the Colonies with England — Claims of the English Parliament — Opposite View of the Colonies — How Vindicated by the Present Colonial System of England — Observations — ' Force of Circumstances in Compelling the Adoption of the Anglo- Saxon System in America — The Right of Revolution — Founded in Nature — Object of Governments — The Doctrine of Consent — Revolution

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only Justifiable in Case of Tyranny or Usurpation— Objection to the Right of Revolution on Scriptural Grounds — How Answered — Case of Hezekiah — Revolution is Justifiable Politically only by Success — Prudentially by an Improved Government — The American Revolution Justified Religiously, Politically, Prudentially — A Question, . 433

Chapter XV. Independence

First Congress of Colonial Delegates — Assertion of Rights — Non-Intercourse — Petition to the King — Advice to Massachusetts — Lord North's Motion Rejected — Adjournment of Congress — Its Proceedings after Reassembling — Debate on the Proposition to Declare the Independence of the Colonies — Committee Appointed to Draft a Form of Confederation — Further Steps towards the Adoption of the Declaration — Its Final Signature by the Members of Convention — Matter of the Declaration — Whence Derived — Its Legal and Constitutional Effect — Its True Grandeur, ....... 448

The Unanimous Declaration of the Thirteen United States of

CHAPTER XYI.

confederation.

Committee on Confederation Appointed before the Declaration was Adopted — Its Report — Debate on the Plan of Confederation — Proportion of Taxation — Remarks of Mr. Chase — John Adams — Mr. Harrison — Mr. Payne — Dr. Witherspoon — Debate on State Yotes in Congress — Remarks of Mr. Chase — Dr. Franklin — Dr. Witherspoon — John Adams — Mr. Hopkins — Mr. Wilson — Adoption of the Confederation — Its Yalue, 467

Articles of Confederation, .... . 4*78

Chapter XVII

adoption of the constitution.

Circumstances under which it was Adopted — Constitutional Position of the Colonies after the Declaration — That of Limited or Constitutional Governments — Independent of each other — Yet United — Distinction Between a Consolidated and a Federative Union — Weakness of the Confederation — Financial Difficulties — Difficulty in Making Treaties of Foreign Alliance — Proposition in Congress — Call of Virginia — Convention at Annapolis — Its Report to the Legislatures — Congress calls upon the States to Send Delegates to a Convention — Importance of the Phraseology of the Call — Assembling of the Convention at Philadelphia — Parties in the Convention— The Monarchical Party — The Large State Party — The State Rights Party — Propositions of Mr. Randolph — of Mr. Charles Pinckney — of Mr. Patterson — Of Colonel Hamilton — Twenty-Three Resolutions of Convention with Dates of their Adoption — Debates on the Third and Fourth Resolutions from Luther Martin — Equal Division of the Convention on the Subject of Representation in Congress — Conference — Compromise — Draft of Constitution Reported — Omission of the Word National — The Reason — the Revised Draft — Omission of the Names of States in the Preamble — The Reason — Seces-

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sion of States from the Confederatioa — Unanimous Adoption of the Constitution in Convention — Its Reception by Congress — Ratifications by the States — Act for Putting it in Operation — Washington Elected President — Imperfection of the Constitution as Adopted — Declarations Made and Amendments Offered by the States — Massachusetts — New Hampshire — South Carolina — Virginia — New York — Rhode Island — Twelve Amendments Proposed by Congress — Ten of them Accepted by the States — Value of the Amendments — The Eleventh Amendment — The Twelfth — Concluding Observations, . . . . 489

Constitution of the United States of America, . . . 527

Articles in Addition to, and Amendment of, the Constitution of the

United States of America, . . . . . . 540

ADDENDA TO PART SECOND.

LOCKE ON GOVERNMENT.

Objects of Government — Arbitrary Power Compared with a Government of Laws — Consent and Force — Conquest — Right of the Conquered — Limits of the Right which can be Obtained by a Rightful Conqueror — Over His Own People — Over the Vanquished — The Latter Despotical — But not Universal in its Extent — Not Including the Property of the Vanquished, which is his Children's — But only the Lives of those Actually Engaged in War — These Propositions Logically Discussed — Right of Rebellion Reserved to the Conquered even after Forced Consent to the Victor's Authority — This Right an Indefeasible Inheritance of their Posterity — Case of the Greek Christians — Summary — Case of Hezekiah — Arbitrary Rulers put themselves into a State of War with the People — Thereby Absolving them from Allegiance — The People not Disposed to Revolution — The Right of Revolution and Rebellion— When it Exists — Objections Answered, . . . . . 546

BURKE ON THE AMERICAN WAR.

Exordium — Occasion of the Speech — Magnitude of the Task of Restoring Order in America — Burke's Proposition is " Peace not Through the Medium of War " — " It is Simply Peace " — With the View of Restoring Confidence and Procuring Reconciliation — The Questions at Issue — Ought Concessions to be Made? — If so, What Concessions? — Position of the War Party — Objections — Advantage Gained by Force Temporary — America must be Destroyed in Preserving it to England — Experience against the Use of Force — American Temper and Character — The Spirit of Liberty — Working of Colonial Government- Conduct of the Government towards America — Means of Reconciliation — the Causes of Discontent must be Removed — Impossibility of Subjugation — Infamy of the Attempt — Unfitness of England for the Task — The American Character Fixed and Unalterable — Spirit of the Southern Colonies — Slaves — Proposition of Criminal Prosecutions against Rebels — "Too Big a Thing " — Definition of an Empire — Inference — Judicial Position of England — Her Consequent Duty of Jus- . tice — What had been Gained by the Measures of the Government ? What Concessions ought to be Made — Complaint of the Colonies — Taxation without Representation— Duty of Government — Necessity of a Unity of Spirit — The Colonies must be Protected by the Constitution — Example of Spain — Precedent of Ireland — Wales — Chester — Durham — Excitement of the* American Mind to be Considered and Allowed for — Effect of Reconciliation, . . . . .558