The fundamental law of American constitutions

Front matter

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Preface

In writing these lectures it has been my constant endeavor to pro¬ duce an elementary work for the use of students at law and other beginners in the study of constitutional law and history.

To do this with any hope of even a small degree of success, it was necessary to proceed according to the requirements of a logical analysis and gradual development of the subject, and to avoid general history except so far as necessary to understand the great constitutional docu¬ ments and events which mark epochs in the origin and growth of the constitutional law of the United States.

If these lectures were intended for advanced scholars and profes¬ sional experts, it would have been a useless waste of space to have included the full text of Magna Carta, the Petition of Right, the Bill of Rights, and other statutes and instruments of constitutional import, but to those who are taking their first lessons, the full text is of the highest importance, as but few can have recourse to the numerous publications where the originals can be found.

Documentary history is the most instructive part of our subject, coupled as it is, with the services of such distinguished characters as Stephen Langton, Simon de Montfort, Edward Coke, John Hampden, James Otis, Alexander Hamilton, James Madison, and others to whom reference is made in the following pages.

Modern research by such great historical scholars as McKechnie, Maitland, Stubbs, Pollock, Medley and others in Great Britain, and Hannis Taylor and George Burton Adams in America, has made the study of constitutional history more interesting and valuable than ever before; and it is not too much to say that every American citizen should become familiar with the subject, and have as good an understanding as each is capable of attaining of the fundamental principles of our written** constitutions.

The increase in population by successive generations of children, with the addition of a large influx of the foreign born, coupled with manhood suffrage, and in a number of states with female suffrage, is a serious element of danger, if it is not counteracted by a more thorough instruction in the history of institutions and the essential elements of constitutional liberty.

Some competent person should write a primer on constitutional law, for universal use in the schools and colleges, and which would be of great benefit, if it were on the evening table of every American home.

Not competent to write such a primer, my effort has been to pro¬ duce such a work as I would like to have had when a studenat at law, and if a few of those who are seeking to fit themselves for the legal profession find it of some use to them, my highest expectations will be realized.

My prayer is that some of the young men who have listened to these lectures, or into whose hands they may happen to fall, will write more entertainingly and instructively than I have been able to do.

Representative taxation and legislation with power in the courts to enforce the fundamental law, is the best system of government civilized men have ever known, and all attempts to discredit it should meet with strong and persistent opposition. F. A. B.

Contents

Introductory.

Importance of constitutional law in the United States— Constitutional law of a political nature, and constitutional law of judicial cognizance—The study of constitutional law—The division of the constitutional law of the United States into six different subjects—The sovereignty of the people—the divi¬ sion of the powers of government into three co-ordinate branches—the legislative—the executive—the judicative— the reign and rule of law—Illustrations from the constitutional provision prohibiting unreasonable searches and seizures and general warrants.—P. 1.

I. The Sovereignty of the People

The elective franchise and its representative nature— Guizot’s classification of governments—Popular assemblies of the ancient Germans as described by Tacitus—Township gov¬ ernments in the United States—Restrictive statute of British Parliament of 1774 (14 Geo. Ill. c. 45, sec, 7)—Democracy and representative government inseparable — Immutable nature of the fundamental law—Easy methods of amending constitutions objectionable*—Initiative and referendum con¬ demned.—P. 19.

II. Division of Powers

Virginia constitution of 1776 and the Massachusetts con¬ stitution of 1780 divide their state governments into three departments, the legislative, executive and judicative—The constitution of the United States is to the same effect—And so are all the state constitutions—But nearly all of these conii.

stitutions give the executive a qualified negative on the legisla¬ tive—Review of authorities.—P. 41.

III. Division of Powers

Survival of doctrine that fixing rates is a legislative func¬ tion—A Virginia case—Common law remedies abolished byinterstate Commerce Act—Ministerial power not the same as executive—Whether under the Michigan Constitution of 1908, an act of the legislature is to take immediate effect or not is a legislative and not a judicial question.—P. 63.

IV. The Legislative

The origin and development of the great constitutional doctrine, that the power to tax and to legislate, can only be exercised by a legislature, one house of which must be directly and immediately elected by the people—Charter of Henry I. —The events which led to Magna Carta—Archbishop Langton’s great services in advising and encouraging the Barons.-

V. The Legislative

Full text of Magna Carta as translated by McKechnie— Comments thereon—The importance of obtaining a good understanding of the Great Charter as a starting place in the study of constitutional history and law.—P. 109.

iii.

VI. The Legislative

Statute Confirmationes Chartarum—Statute De Tallagio non Concedendo—14 Edward Ill., Stat. 2—Petition of Right.

VII. The Legislative

The Ship-Money case, 1 Hargraves State Trials 508—2 How. State Trials 826—Speech of the Lord Keeper showing the case submitted by the king to the judges—The judge’s answer—Argument of Oliver St. John for Mr. Hampden— Argument of Solicitor General for the King—Argument of Mr. Holborne for Mr. Hampden—Argument of Attorney- General for the King.—P. 147.

VIII. The Legislative

The Ship-Money case of King v. John Hampden—Opin¬ ions of the judges—Seven for the King—Five for Hampden— Three of the five on technical grounds—Review of the opin¬ ions.— P. 175.

IX. The Legislative

The Ship-Money case—The judgment of the judges in favor of the King reviewed by the House of Lords—Judgment iv.

of the House of Lords reversing the judgment of the judges— Act of Parliament declaring ship-writs illegal—Impeachment of the judges—Impeachment of the Earl of Straford and the Archbishop of Canterbury, and their execution under bills of attainder—Trial and execution of Charles 1.—Constitutional documents of the Commonwealth and the Protectorate.— P. 201.

X. The Legislative

Reigns of Chas. II. and Jas. II.—Test Acts of 20 Chas. II., c. 2; 30 Chas. II., c. 1 ; 3 Jas. I., c. 4; 1 Eliz. Stat. 1, c. 2; 1 William and Mary, c. 8—Jas. II. continues customs duties by proclamation; establishes an Ecclesiastical Commission—Case of Godden vs. Hales, 1 1 St. Tr. 1 163—Declaration of Indul¬ gence—Case of the Seven Bishops—Prince of Orange takes possession of London—Convention Parliament of 1 688-9— Bill of Rights—Provisions of American constitutions securing religious liberty—Constantine’s Edict of Tolerance of A. D. 31 3 —P. 223.

XI. The Legislative

The legislative in the English colonies in America—The Virginia Company of London—The Virginia Company of Plymouth in England—Colony of Massachusetts Bay—Prov¬ ince of Carolina—Grant of New Hampshire—Charter of Rhode Island—Charter of Connecticut—Grant of Chas. II.

to Duke of York—Grant of New Jersey by Duke of York-

Forfeiture of Charter of Massachusetts Bay and grant of new Charter by William and Mary—Grant of Pennsylvania to

V.

William Penn—Grant of Delaware by AVilliam Penn—Charter of Georgia—The case of the Island of Grenada—The First Constitution of Virginia—Sir Edwin Sandys—Compact on the Mayflower.—P. 245.

XII

The legislative power cannot be delegated—Acts of 31 Henry VIII. authorizing the King to legislate by proclamation —Opinion of the judges that the proclamations of the King are not law—Ordinance for the government of the territory northwest of the river Ohio—Provisional executive govern¬ ments with legislative power in the Territories of the United States—The steady progress of representative government from the Atlantic to the Pacific and to the insular possessions of the United States.— P. 267.

XIII. The Legislative

The Treaty with Spain ceding the Philippine Islands, Porto Rico and Guam to the United States—Should the Philippine Islands be given their independence?— P. 289.