resulted. And complaints and petitions were put forth from time to time by the House of Commons calling attention to the abuse. Finally, in 1352, a petition was

presented, the royal reply to which, entitled "A Declaration which offences shall be adjudged treason," constitutes the statute.1 This law of Edward III. was altered and enlarged in later reigns. And an amendment to it, referring to witnesses, which has been incorporated in the American Constitution, dates from 1552 in the time of Edward VI., when, in consequence of complaint from persons under trial, that they were unable to defend themselves, because not allowed to meet their accusers, it was enacted that no one should be indicted for treason in future, save on the testimony of two witnesses who should be brought into the presence of the accused at the time of his trial, unless he should willingly confess the charges.2 The Constitution reads: "Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason

1 25 Edw., St. 5, c. 2. The petition prayed that "whereas the king's justices in different counties adjudge persons indicted before them to be traitors for sundry matters not known by the commons to be treason, it would please the king by his council, and by the great and wise men of the land, to declare what are treasons, in this present Parliament." In later reigns the law of treason was often extended to offences not mentioned in this statute of Edward III., but to reduce the crime to the limits of the ancient statute was always a popular measure. With some modifications, this is the law at the present time.

25 and 6 Edw. VI. c. 11.

unless on the testimony of two witnesses to the same overt act, or on confession in open court.'

Article IV., which takes up the general subject of States and territories, in their relation to each other and to the Federal government, touches a variety of matters confessedly of English derivation; and even the State system itself, which usually has been considered an American peculiarity, must be conceded to be only a natural and necessary outgrowth of the old political separation of colony from colony, and of union under the crown. Colony and State have remained the same in substance, whether the higher administration has been centred in London or in Washington. And the identical principle is still in operation in the clusters of colonies of Canada, South Africa, and Australia, and has its analogies in the general structure of the British empire.

The concluding articles- the fifth, treating of amendments; the sixth, detailing sundry matters of routine relating to the establishment of the Constitution itself; and the seventh, providing for the ratification of that instrument - need not be dwelt upon, save as to points

1 Constitution of the United States, Art. III. Sec. 3. "The interpretation of the phrases, 'levying war' and 'adhering to their enemies,' is a matter wholly for the court. The court is, then, empowered to defend the individual against prosecutions for any extraordinary treasons which Congress might attempt to construct." Burgess, Political Science and Constitutional Law, II. 148. See also Hanauer v. Doane, United States Reports, 12 Wallace, 342; Ex parte Bollman v. Swartwout, United States Reports, 4 Cranch, 75; Carlisle v. United States, United States Reports, 16 Wallace,

which will come up in connection with kindred topics in the next chapter.1

1 Reference has already been made in this book to Douglas Campbell's Puritan in Holland, England, and America. The fact admitted by Mr. Campbell, that historians take a position entirely at variance with his, seems not to have deterred him from setting up a claim for Dutch influence in America; which claim, in most of its particulars, must continue to lack the support of historians. A conspicuous feature, giving the key to the whole of his work, is an argument in the introduction, intended to demonstrate that American governmental institutions are not of English derivation. He says: "Instead of those of the United States being derived from England, it is a curious fact, that while we have in the main English social customs and traits of character, we have scarcely a legal or political institution of importance which is of English origin, and but few which have come to us by the way of England.” -I. II. In proof of this astonishing assertion he proceeds, after referring to certain religious and social matters, to illustrate by specifying characteristics of the American Constitution. Let us briefly

look at these characteristics.

(1) Mr. Campbell intimates, that as the English Constitution is unwritten, Americans could not have got a written constitution from England; and seems to imply that they therefore got it from the Dutch, who had a written compact in the Union of Utrecht, of which he says much. Of course, nowhere in his work does he show American continuity from this imagined Dutch original. And he wholly ignores the real origin of written constitutions in America; viz. the English charters granted by English sovereigns to English subjects. These latter, with the English political usage growing up under them, formed, as we have seen, the constitutions of colonial days. All the States save Connecticut and Rhode Island, framed the first State constitutions accordingly, — those two States retaining the old charters, even into the nineteenth century. The national Constitution, as a written document, is based on the written constitutions of the States, as these in turn were based on the written English charters. And the latter had their source in English trade charters, and not in any Dutch original whatsoever.

(2) He intimates that the American executive office is not of English derivation, because the President is a personal executive, and the English sovereign of to-day is controlled by a cabinet. In this he strangely confuses historical facts, and leaves altogether out of view the real evolution, through the colonial governorship and otherwise, from the older English kingship before the establishment of the Cabinet system.

(3) He intimates that the American Congress is not of English derivation, because the House of Lords of to-day has powers differing in some degree from those of the Senate, and the latter body is, in part, an executive or privy council; and because further a member of the House of Representatives is paid, and has a term of membership differing as to duration from that of a member of the House of Commons. Surely no serious answer need be accorded to arguments so trivial, in view of the fact of legislative evolution in organization, privileges, and power, traced in the foregoing Chapters III. and IV.

(4) Mr. Campbell says that "above all in America. . . sits the Supreme Court to see that the Constitution . . . is preserved intact. Its judges are appointed by the President and confirmed by the Senate, but they hold office for life or good behaviour." The foregoing chapter shows how far this can be claimed as proof that the American judicial system is not of English and Anglo-colonial evolution. He adds: "These features make up the peculiarities of the American Federal system, and differentiate it from other forms of government. All nations have an executive of some kind, most of them have judges and legislative bodies, so that in these general outlines there is nothing on which to base a theory of English origin. The question is whether our peculiar institutions, those distinctive of America, are derived from the 'mother-country.' That is, of course, the sole question. And the aim of the present book-written before Mr. Campbell's appeared — has been to definitely settle the question in the affirmative, by the appeal to history.

CHAPTER VIII.

THE BILL OF RIGHTS.

HE English common law, which lies at the basis of

THE

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 Rights 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

1 "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.