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PROVISIONS IN THE CONSTITUTION IN THE NATURE OF A BILL OF RIGHTS.
A Declaration, or Bill of Rights, determines certain powers that are excepted out of the general powers of government. History teaches that there are certain personal rights that men in office are prone to violate. To prevent a repetition of that violation, the government is prohibited by law from doing certain things.
That all governments derive their just powers from the consent of the governed, is an old political maxim. "There are three fundamental principles of the English constitution," says Macaulay, "which no one can say when they began to exist. As far back as history can go, the King could not legislate without the consent of his Parliament, nor impose any tax without the consent of his Parliament, and he was bound to conduct the executive administration according to the laws of the land, and if he broke those laws his advisers and agents were responsible." In like manner, the consent of the people is the origin of the powers of our governments.
The great political problem on this continent has been to preserve the rights of the individual, and at the same time establish an efficient government. The emigrants to America had been trained to guard against the usurpations of power, and the most precious
jewels in all the charters and constitutions in our history, are the prohibitions by which the rights of the individual are protected from the violence of tyrannical laws and an arbitrary use or abuse of power.
When oppressive laws are passed and government becomes destructive of the ends for which it was instituted, men cease to submit with passive obedience. History is tame and uninteresting when destitute of revolutions. While private life is contented, and the political life of a nation keeps on undisturbed ; while material prosperity forms the chief aim of its citizens, the historian has smooth sailing, where no waterfalls or impending rocks give life and animation to his course. But when an oppressed people demand a redress of grievances, when the insolence of power is no longer endurable, when civil wars and revolutions arise whereby the people strive to secure the ratification of rights forcibly demanded, then it is that history is worthy of study.
Our Constitution was framed for a people trained in the school of English liberty. In the long contest for civil and religious freedom, wherein were employed every element that the ingenuity of man could devise, many battles had been fought against the claims of arbitrary power. Violent Princes, presuming that they ruled by divine right, had been checked in their mad course of oppression, and many a noble soul gave up his life in prison or at the block in behalf of liberty.
The main fruits of the contest are recorded in Magna Charta of 1215, the Petition of Right of 1629,
and the Bill of Rights of 1688-charters that are all dear to every liberty-loving people.
The principles that guided the men of 1776 were reaffirmed in the convention of 1787. The Declaration of Independence was not the mere production of Jefferson, it was the ripe fruit of all the ages wherein men struggled for light and liberty. From the days of the predatory despotism of William, the Conqueror, to the Declaration of Independence, is seven centuries, and during all that time popular rights plead for recognition.
Nor did the American Revolution lull our ancestors to sleep, or make them forget that "eternal vigilance is the price of liberty." English history is our history, and Magna Charta contains limitations upon governmental power which our Constitution again secures for the people. The progress of freedom in England was slow and imperfect. The memorable thirty-ninth section of Magna Charta which the barons, sword in hand, extorted from King John, began “Nullus liber homo," no free man was to be deprived of trial by a jury of his peers, or by the law of the land. In 1215, probably one-half of England's two millions of inhabitants were slaves in abject wretchedness. No clause in Magna Charta speaks the language of our Thirteenth amendment. "Neither slavery nor involuntary servitude except as a punishment for crime whereof the party shall have been duly convicted shall exist" within England or any place subject to its jurisdiction-nor, inheriting English laws, as we did, could our Constitution have been adopted in 1788 with such a clause in it. As the English Constitu
tion, growing with the growth of the number and power of the English people, has become more enlightened and free with the progress of civilization, so our Constitution has kept pace with the progress of the world. Thus the sphere of individual liberty has been enlarging for centuries, and the powers of government in the meantime have been more strictly limited and defined.
To trace the progress of individual liberty in this land for the past century is not attempted, but I shall speak of the protection to life, liberty and property guaranteed by the Federal Constitution and its amendments.
It was not strictly correct to say that the men who formed the Constitution asked the adoption of it while it yet contained no bill of rights. Its prohibitions upon governmental power almost equal those of the amendments that were passed expressly to secure the protection of person and property.
The entire Federal government is itself constrained to the exercise of only such powers as have been delegated to it, all other powers being reserved to the States or the people. It is the State governments against which the individuals must guard by a bill of rights. The States have all the prerogatives of power except what have been expressly taken away, and it is the plenitude of their powers which the individual needs dread. The Declaration of Rights in the new Constitution of Pennsylvania is fitly made the first article thereof, and its twenty-six sections indicate the necessity of restraining the State "that the general, great and essential principles of liberty and free gov
ernment may be recognized and unalterably established."*
Let us trace the history and note the importance of the various clauses in the nature of Declarations of Rights in the Constitution itself in the first place.
The trial by jury or the law of the land and privileges of the writ of Habeas corpus, whereby neither justice nor right was to be sold, denied, nor delayed to any man, were the crowning glories of the great charter, and for six centuries have formed the most distinguishing characteristics of the English Constitution.
True, the writ of Habeas corpus was rendered more actively remedial by the statute of Charles II.; yet the principle of the writ, the taking of a man from prison to inquire into the cause of his commitment, and discharging him if not legally confined-pervaded the English laws four centuries before the time of that King and the Habeas corpus act of Lord Chief Justice Shaftsbury.
The origin of trial by jury is unknown. As far back as English history goes, even into the history of the Danes, the Germans and the Normans, the question of a man's guilt or innocence of a criminal charge was determined by a free and enlightened body of his fellow citizens, and not by officers of the executive authority. But in England alone ‡— unless Normandy be added-juries have ever been distinct from the judges, who compose the court. In * Const. of Pa., art. i.`
† Creasy's Eng. Const., p. 188.
Forsyth's Hist. of Jury, chap. ii., iii.