CHAPTER VIII.

THE BILL OF RIGHTS.

HE English common law, which lies at the basis of

TH

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.

charters included it in their provision, that Englishmen in the colonies should be entitled to the same privileges as Englishmen at home.1

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

1 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.

2 "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. 2.

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 1708.1 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. In 1638 the first assembly of Maryland 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 1 Laws of New York, 1708.

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."1

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

1 Journals of Congress, I. ed., Phila. 1800.

2 Regarding attainder and ex-post facto laws, Mr. Justice Miller remarks: "The prohibition against passing bills of attainder is one