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NEW YORK STATE 
 CONSTITUTIONAL CONVENTION 
 
 EXERCISES 
 IN COMMEMORATION 
 
 OF THE 
 
 Seven Hundredth Anniversary 
 
 OF 
 
 MAGNA CHARTA 
 
 Assembly Chamber, The Capitol, Albany, New York 
 
 JUNE 15, 1915 
 
 ALBANY 
 
 J. B. LYON COMPANY, PRINTERS 
 
 1915 
 
 E.Y. 
 
COMMITTEE 
 Martin SAXE, Chairman 
 
 Lemuel E. Quigg 
 Albert F. Gladding 
 Morgan J. O'Brien 
 John B. Stanchfield 
 
PROCEEDINGS 
 
 The Capitol, June 15, 1915, 8 :10 p. m. 
 Peesidei^t Koot : 
 
 Ladies and Gentlemen: The Convention appointed by the 
 people of the State to revise the fundamental lavr under which 
 v^e live, as to the framework of government and the principles 
 of public morality, has deemed it appropriate to arrange for a 
 celebration of the seven hundredth anniversary of the signing 
 of Magna Charta. 
 
 That was a great event in English history. The restrained and 
 unemotional English themselves, in their most formal public docu- 
 ments, describe it as the Great Charter of English liberty. But it 
 is not merely as a great event in English history that we celebrate 
 it. It was a great event in our history, and it was a great event 
 in the world's history. 
 
 That instrument which the barons compelled King John to sign 
 contained no rhetoric ; it did not philosophize ; it was a plain, prac- 
 tical assertion of common rights fitted to the vise of the people of 
 England of that day. Hundreds of great declarations of prin- 
 ciples have been made and forgotten since that time, but this 
 simple, homely grovrth from the life of the English people has 
 endured these seven hundred years. 
 
 The Charter was not a gift of privilege by the monarch. Hun- 
 dreds of monarchs have granted privileges to their subjects since 
 that time and the privileges have been forgotten, and the monarchs 
 with them. It was an assertion of right by men who were willing 
 to fight for their rights, and to die for them. And during all these 
 seven hundred years, the men to whom that has been the Great 
 
 [31 
 
4 Magna Chakta 
 
 Charter of liberties have been willing to fight for their liberties and 
 to die for them. 
 
 But even those qualities were not the essential thing which kept 
 alive this wonderful instrument, for seven hundred years. The 
 essential thing was that the Great Charter asserted a principle 
 of human liberty upon which rests the development of the freedom 
 of the world. It asserted — it did not ask for — it asserted the 
 rights of Englishmen as against their government, and superior 
 to their government. Without rhetoric, without reasoning, without 
 philosophy, it asserted those rights which, nearly six hundred years 
 later, the sons of those Englishmen crystallized in the Declaration 
 of American Independence, as the inalienable rights of man, to 
 secure which governments are created. 
 
 There are but two underlying theories of man in the social rela- 
 tion to the state : One is the theory of the ancient republics, under 
 which the state is the starting point from which rights are deduced, 
 and the individual holds rights only as a member of the Statei. That 
 was the theory of Greece, and Rome, and the Italian republics. 
 The other is the theory of the Great Charter, the theory of the 
 Habeas Corpus Act, of the Statute of Treasons, of the Petition of 
 Rights, of the Bill of Rights, of the Massachusetts Body of Liber- 
 ties, of the Declaration of Independence, of the American Repub- 
 lic, that the individual has inalienable rights, of which no govern- 
 ment may deprive him, but to secure which all government exists. 
 
 The first theory, of the ancient republic, that the state is all in 
 all and the individual derives his rights as a member, leads to the 
 logical and inevitable result that the state is free from those rules 
 of morality by which individual men are bound. It is the prin- 
 ciple which was applied in Belgium. It is the principle which 
 was applied to the Lusitania. 
 
 The other, asserted in the Great Charter, by logical and inevita- 
 ble result binds the state by the rules of morality which the indi- 
 vidual recognizes ; and this supremacy of that rule of right, govern- 
 ing all men and all states and powers, is the hope of mankind. 
 
 The assertion of that great and eternal principle seven hundred 
 years ago we celebrate as the greatest of all events in the political 
 development of modem liberty. 
 
 Eor that celebration our state has sent to this hall of the Conven- 
 tion the best it has in character and intellect and proved citizen- 
 
Seven Hundeedth Anniveesaey 5 
 
 ship, and respect and honor ; and from among those who have come 
 I call first upon the president of Columbia University, Mr. Nicho- 
 las Murray Butler. 
 
 !NlCHOLAS MUEEAY BuTLEE : 
 
 This day seven hundred years ago that monarch whom John 
 Eichard Green has called the ablest and most ruthless of the 
 Angevins rode out from Windsor Castle, followed by a group of 
 retainers and dependents, to meet the assembled barons of England. 
 They gathered with their knights some two thousand strong, with 
 Kobert FitzWalter as marshal at their head. The place chosen 
 for the meeting was within easy eye-shot of Windsor Castle and had 
 been for generations a favorite meeting place of kings in council. 
 Eunnymede — which is Running-Mede, a meadow of comicil — 
 was in 1215 already a memorable spot. Here under an ancient 
 and venerated oak, whose boughs and branches had looked down 
 upon the ceremonies of Druids, at a spot where the valley of the 
 Thames widens out to tempt the traveler's eye with its quiet 
 beauty, the Saxon kings had been wont to gather their people 
 about them to discuss questions of more than usual importance. 
 One likes to think that the assembly of wise men, the Witenage- 
 mot — the elder statesmen of that day — had more than once 
 gathered at Runnymede under its spreading oak. There perhaps 
 an Alfred, an Athelstan or an Edgar had sat in royal state to take 
 counsel for the people of Saxon England. 
 
 The meeting, which began on June 15, 1215, and which ex- 
 tended over four days of anxious counsel and debate, was no ordi- 
 nary gathering. Feelings, hopes, ambitions that had long been 
 forming; tendencies of whose end and significance those who 
 represented and voiced them were but dimly conscious; aspira- 
 tions that lie deep in the heart of man from the beginning of time, 
 but come to the surface only with the passing of long ages of years, 
 were all struggling for expression. The turbulence of a century 
 and a half had left its mark everywhere. The invading Norman 
 with his disciplined troops and vigorous administrative skill had 
 overthrown the Saxon kings and mounted the throne of England 
 in their stead. Meanwhile for five generations the new Norman 
 and the old Anglo-Saxon nationalities had been gradually welding 
 
6 Magna Chaeta 
 
 themselves into a new nation in which the ancient Saxon customs 
 and traditions were to come once more to the post of honor and to 
 share the rule. The administrative, the financial and the judicial 
 reforms of William the Conqueror and of the two Henrys, had pro- 
 vided the skeleton for a nation's government ; while the intermin- 
 gling of the two bloods, the two temperaments and the two tradi- 
 tions was providing the body for a nation. The Crusades had 
 stirred the imagination of men and had lifted them up out of 
 absorption in their merely local and personal concerns. They had 
 also greatly stimulated trade and commerce. As a result, the 
 tovsms were taking on new importance and were growing in size. 
 There was stirring everywhere, and it was no longer likely that 
 the people of England would rest content with the rule of even so 
 popular a king as Richard the Lion-hearted, who during more 
 than ten years of nominal reign could find but two opportunities 
 to set foot on his island realm. Nor was it in the least likely that 
 his brother John could interpret and lead and satisfy the new 
 ambitions and the new hopes which felt their opportunity and 
 their security to lie in the preservation of those ancient Anglo- 
 Saxon liberties that had been granted by no man, but that had been 
 taken for granted at the very beginning of their history by a peo- 
 ple intended to be free. 
 
 The English-speaking race was born free. It never had to 
 extort freedom from a tyrant, although it has time and again been 
 faced by the necessity of keeping a tyrant from invading its free- 
 dom. Such a tyrant was King John. Here is the pen-picture of 
 his character as drawn by Bishop Stubbs : " He was the very worst 
 of all our kings : a man whom no oaths could bind, no pressure of 
 conscience, no consideration of policy restrain from evil; to his 
 people a hated tyrant. Polluted with every crime that could dis- 
 grace a man, false to every obligation that should bind a king, he 
 had lost half his inheritance by sloth, and ruined and desolated 
 the rest. ISTot devoid of natural ability, craft or energy, with his 
 full share of the personal valor and accomplishments of his house, 
 he yet failed in every design he undertook, and had to bear humili- 
 ations which, although not without parallel, never fell on one 
 who deserved them more thoroughly or received less sympathy 
 under them. In the whole view there is no redeeming trait; 
 
Seven Hundkeuth Anniveksaey 7 
 
 J ohn seems as incapable of receiving a good impression as of carry- 
 ing into effect a wise resolution."^ This was the sort of man who 
 had during his more than fifteen years of reign been in constant 
 trouble and serious conflict. His cruelty and treachery, mani- 
 fested in the murder of his nephew, Arthur, had forfeited his 
 French fiefs and had led to the separation of Normandy from Eng- 
 land. He had quarreled with the church and with the Pope him- 
 self, and then brought the quarrel to an end with a submission 
 which was as humiliating as the quarrel itself was reckless. For 
 years he had been at odds with the barons and for no small part of 
 the time at war with them. His greed and avarice, his selfish- 
 ness and cruelty, his arbitrariness and lusts had led him to invade 
 the ancient Anglo-Saxon liberties at every turn. The time had 
 come when the feudal lords must make common cause with the 
 merchants and dwellers in towns and with the free-holding ten- 
 ants in order to put a curb upon the despotism of the King. 
 Historians differ as to whether, in extorting Magna Charta at Run- 
 nymede, the barons were acting only for their own class and were 
 gaining privileges, or whether they were acting for the people 
 of England and were establishing rights. Whatever they them- 
 selves may have thought they were doing, the fact is that they 
 did act for the people of England; and it is the people of Eng- 
 land as well as the people of the great independent and colonial 
 offshoots of the parent stock who are the beneficiaries of the docu- 
 ment to which on that memorable day King John and his barons 
 put their hands, and he his royal seal. 
 
 It is to a contemporary French scholar, M. Bemont, that we 
 owe the simplest and most accurate description of what Magna 
 Charta is. Magna Charta, he tells us,^ is the act by which King 
 John of England in the seventeenth year of his reign conceded and 
 solemnly confirmed on June 15, 1215, the liberties of the English 
 people. Magna Charta reproduced with much more fullness of 
 detail the Charter of I^iberties of Henry I, which in turn revived 
 those ancient customs of the people and recognized the lawful 
 freedom of the nation as these had been symbolized by the laws 
 of Edward the Confessor. In this way Magna Charta made for- 
 
 i Constitutional History of England (Oxford, 1887), 11:17. 
 ^ Ghartes des Libertis Anr/lnises (Paris, 1892), vii. 
 
8 Magna Chaeta 
 
 mal legal comiectiou between the iustitutions' of Anglo-Norman 
 England and those of the Anglo-Saxon England of the days before 
 the Conquest. King John was not a man to take so momentous 
 a step willingly. It is, therefore, a matter of just surprise, even 
 after making allowance for all the known attendant circumstances, 
 that the demands of the barons were granted so speedily, and 
 that within four days Magna Charta was perfected and enough 
 copies made to place one in every diocese in England. The ex- 
 planation is offered by Edmund Burke who shrewdly says of John 
 that " without questioning in any part the terms of a treaty which 
 he intended to observe in none, he agreed to everything the barons' 
 thought fit to ask, hoping that the exorbitancy of their demands 
 would justify in the eyes of the world the breach of his prom- 
 ises."^ As a matter of fact, John did not keep his pledges made 
 in Magna Charta and never intended to do so. The moment the 
 Charter was granted those who had united to obtain it fell into 
 conflicting groups, and some even took the side of the King. For 
 two months following the granting of the Charter various steps 
 were taken that looked toward peace and reconciliation between 
 the King, the barons and the people. August 16 was fixed as the 
 date when the reconciliation was to be complete. The day came, 
 but the King failed to appear to meet the bishops and the barons, 
 he insisted that he dared not trust himself within reach of their 
 armed forces. The barons on their side claimed that the King 
 had been false to his promises, and under the terms of the Charter 
 itself, they declared war upon him. Pope Innocent III for- 
 mally annulled the Charter and excommunicated the King's ene- 
 mies and all disturbers of the peace. While chaos reigned and 
 the future seemed trembling in the balance, the struggle was 
 brought to an end by the death of John one year and four months 
 after Magna Charta had been signed. A child succeeded to the 
 throne, and the wise regents reissued the Great Charter with vari- 
 ous changes, and stated that no permanent infraction of its pro- 
 visions was in contemplation. It was in this way that Magna 
 Charta took its place in the statvTtes of the realm. Its annulment 
 by Pope Innocent III within two months after its execution, with 
 the resulting release of King John from the obligations of his 
 
 3 Abridgment of English History, in Worl-s (Boston, 1884), vn:460. 
 
Seven Hukdeedth Anniveesaey 9 
 
 oath, has been forgotten and is now a curious bit of mediaeval his- 
 tory. On the other hand, the charter of Henry III, confirmed 
 on February 11, 1225, v?hen the young king was pronounced to be 
 of age, establishes definitively and for all time the text of Magna 
 Charta as this now exists in substantive law. It was the text of 
 this Charter of 1225 that was confirmed, after the establishment 
 of Parliament, by Edward I in 1297 as the common law and 
 which, after that day, takes its place at the head of the statutes 
 of the realm preceding the Provisions of Merton. 
 
 The traditional conception of Magna Charta and its place in 
 the history of English-speaking people have been stoutly chal- 
 lenged as a result of the studies and researches of the past genera- 
 tion. The statement of Stubbs • that " the great charter is the 
 first great public act of the nation, after it has realized its ovra 
 identity: the consummation of the work for which unconsciously 
 kings, prelates, and lawyers have been laboring for a century " * 
 remains substantially true, however, despite the ingenious inter- 
 pretations of its provisions offered by M. Petit-Dutaillis' and the 
 destructive criticisms of Mr. Edward Jenk^ who regards any 
 such view of Magna Charta as imposed upon history and his- 
 torians by the " ingenious but unsound historical doctrines " of 
 Coke. 
 
 A most competent American historian has recently pointed out 
 that it behooves us to be modest in our rejoicings over the discov- 
 eries that reverse long-cherished beliefs.' We must remember 
 that these reversals cannot be made retroactive so as to affect the 
 thoughts and deeds of the generations who knew not the reality as 
 we now perceive it, but who built upon the foundation of their 
 own interpretations. We must remember, in short, that for very 
 much of history there is more importance in the ancient error, 
 if it be error, than in the new found truth, if it be truth, for it was 
 the ancient error that moulded the beliefs and directed the conduct 
 of men. Whether Magna Charta was a treaty between a feudal 
 
 * Constitutional History of England (Oxford, 1887), 1:571. 
 
 « Studies and Notes supplementary to Stubbs' Constitutional History (Man- 
 chester, 1908), pp. 127-145. 
 
 e See The Myth of Magna Charta, Independent Review, iv, pp. 260-273. 
 
 7 Dunning, Truth in History, in American Historical Revieic, January, 1914, 
 pp. 217-229. 
 
10 ilAGNA ChABTA 
 
 king and his barons, or a statute promulgated by the king with the 
 assent and approval of his barons, or merely a royal declaration like 
 the Charters of Liberties of Henry I and Henry II which preceded 
 it, or an act declaring and amending the law in a great number of 
 particulars, or an act for the amending of the law of real property 
 and for the advancement of justice, makes little difference and is 
 now a question for the curious only. The important fact is that 
 it placed the king below the law, and that it bound him not so 
 much to the granting of new liberties and privileges as to the con- 
 firmation of those older liberties and privileges which he had 
 flaunted and violated. It did this by laying legal limitations on 
 the feudal military power, principally in respect to matters of 
 finance; by laying legal limitations on the judicial power; by lay- 
 ing legal limitations on the financial power or the power to tax; 
 and by providing legal sanction for the liberties assured the people 
 and for the assurances themselves. 
 
 The Charter was followed or accompanied by Assizes, Assizes 
 by Provisions, Provisions by Statutes. Still lal^er it became 
 the single rule that the king, lords and commons must concur in 
 the enactment of a statute, and that a rule laid down with their 
 concurrence was a statute. Blackstone is certainly justified in 
 saying that Magna Oharta is the earliest of those texts whose very 
 words are law. Prom that time to this the methods of enacting 
 law and the succession of great exponents and expounders of the 
 law are established and well known: Glanvill in the twelfth ean- 
 tury and Bracton in the thirteenth were followed by Littleton in 
 the fifteenth, by Coke in the seventeenth, by Blackstone in the 
 eighteenth and by Kent, Chancellor of the State of New York, 
 in the nineteenth century. 
 
 Burke has defined slavery as living under will, not under law. 
 Magna Charta was a bold and successful attempt to substitute law 
 for will in a number of particulars that were vitally important to 
 the men of that day and generation. It is idle to say, as some 
 have said, that the barons had no conception of what was meani; 
 by law. It may be true that the barons did not know or fully 
 realize what they were moviing toward, but they had a very clear 
 and definite idea of what they were trying to get away from ; and 
 that was none other than the absolute and arbitrary royal will. 
 
Si?VEN Hundredth Anxivebsaey 11 
 
 As a substitute for the royal will, they insisted upon the estab- 
 lishment of certain rules, and these rules were in effect law. Pro- 
 fessor Gneist is quite right in saying that through Magna Charta 
 English history irrevocably took the direction of securing consti- 
 tutional liberty by administrative law.* He quotes with approval 
 Hallam's emphatic words: " The Magna Charta is still the key- 
 stone of English liberty. All that has since been obtained is little 
 more than a confirmation or commentary ; and if every subsequent 
 law were to be swept away, there would remain the bold features 
 that distinguish a free from a despotic monarchy." So great was 
 the importance attached to the Magna Charta by the English peo- 
 ple that before the close of the middle ages its confirmation had 
 been thirty-eight times demanded and granted. 
 
 The Charter itself is a document written on parchment 103^ 
 inches broad and 2II/2 inches in length, including the fold for re- 
 ceiving the label. To this label, which is also of parchment, is 
 appended the great seal of King John. A suificient number of 
 originals was made to deposit one in every county or at least one 
 in every diocese. So, doubtless, it happens that of the four orig- 
 inal copies still remaining, one is preserved in the library of the 
 cathedra] at Lincoln and another in the library of the Cathedral 
 at Salisbury. The remaining two original copies are to be found 
 in the Cotton Collection at the British ]\Iuseum. The Charter, 
 as originally written by its framers, was without division into 
 chapters or paragraphs, but as it deals with sixty-three separate 
 topics, editors and commentators have divided it into sixty-three 
 chapters. Of these, by far the major portion relate to matters 
 which were of grave moment in the thirteenth century, but which 
 have no significance whatever for the twentieth. The importance 
 of Magna Charta in the constitutional history of the English-speak- 
 ing race depends not so much upon its actual contents as upon the 
 interpretation which subsequent generations put upon the docu- 
 ment itself and upon the fact of its existence. Magna Charta 
 could not be used, as can the Constitution of the United States, 
 as a rule for the organization and conduct of a definite govern- 
 ment ; it establishes no government, but deals with habits and cus- 
 toms that were anciently known as liberties and assures them " to 
 the freemen of England and their heirs forever." 
 
 snisfort/ of the English Consliluiion (Xcw York, 1SS6), 1:311. 
 
12 Magna Ohaeta 
 
 Of the sixty-three topics dealt with by the Charter, fourteen 
 relate to matters merely formal or temporary in character, or deal 
 with the execution of the agreement. Of those that remain, 
 twenty-four are purely feudal and aim to protect the barons against 
 abuses by the king, their overlord; two concern only the clergy 
 and the church ; ten deal with the organizat^ion and administration 
 of the royal justice, a matter of grave importance in the thirteenth 
 century ; while the remainder have to do with the dwellers in towns 
 and villages, including the city of London, and with merchants 
 and their privileges. 
 
 The student of historical jur,isprudence whose mind is fixed 
 largely on technical distinctions may continue to insist that it is 
 quite false to claim that Magna Charta contributed to constitutional 
 progress. The student and interpreter of history with broader 
 view and with his eye fixed on the actions and beliefs of men will 
 find himself accepting the opinion of Sir Frederick Pollock and 
 Professor Maitland that " with all its faults, this document be- 
 comes, and rightly becomes, a sacred text, the nearest approach to 
 an irrepealable fundamental statute that England has ever had. 
 . . . Por, in brief, it means this, that the king is and shall be below 
 the law." ^ Through guaranteeing the ano-ient customs of the 
 English people; through protecting merchants against arbitrary 
 taxes and harsh measures; through limiting the royal power to 
 tax ; and through providing that no free man shall be taken or im- 
 prisoned, disseised, or outlawed, or exiled, or in any wise destroyed 
 save by the lawful judgment of his peers or the law of the land 
 (which last provision is reproduced in almost identical language 
 in Article I of the Constitution of the State of New York) , the 
 Great Charter really did lay the foundation of modern English 
 and American liberty. No doubt, this was an accidental and un- 
 foreseen effect of the contests between kings, barons and clergy, 
 but the tendency toward liberty was too strong to hold the rights 
 granted and defined behind the barriers of any class. Voltaire,^** 
 following Bolingbroke, educated the Continent of Europe to be- 
 lieve that in point of liberty the condition of the people was much 
 improved by Magna Charta ; and so, in truth, it was. 
 
 s History of English Law (Cambridge, 1895), r:152. 
 
 10 Lettres pliilosophiques, sur les Anglais (Paris, 1909), 1:101-107. 
 
Seven Hundbedtii Anniveksabt 1-1 
 
 There is such a thing as a geology of politics. The political 
 thoughts and acts of men lie in strata and in layers as do the va- 
 rious and divers rocks that make up the crust of the earth. Each 
 one of these strata and layers carries in its structure the fossil 
 records of the political ideas and the political Jife which then 
 moved to and fro in the world. By studying these fossil records 
 wo may learn how political structures and functions that are 
 familiar to us had their origin ; how political structures and func- 
 tions that were familiar in an older day and generation have 
 passed away or have been transformed and adapted to other and 
 newer needs and conditions; and what the relationship is that 
 binds the political and social life of to-day to those far-off begin- 
 nings which we so attentively note and so gladly celebrate. As 
 the student of geology must trace by patient steps the passage of 
 one form of earth's stinicture and the life that accompanied it into 
 another, so the student of politics must bring to bear all the re- 
 sources of historical knowledge and of critical skill in order to be 
 able to follow down from its ancient sources the stream of modern 
 political tendency and action. The appearance among men, and 
 the evolution, of those forms of political organization that have 
 marked the age-long struggle for liberty and for justice are fit 
 subject-matter for the learning of an Aristotle, for the literary skill 
 of a Plato, for the stirring eloquence of a Burke or a Webster, 
 and for the masterful power of exposition and persuasion of a 
 Hamilton. 
 
 l^othing in all the recorded passage of time so stirs the modern 
 man as the story of the groping efforts to establish liberty and 
 justice, to develop nationality, to open the way to opportunity, and 
 to crown personal effort with personal reward. On his deathbed, 
 the great French revolutionary, Danton, is reported to have said 
 that if he wore able to live his life over again he would have noth- 
 ing to do with the government of men. But where else, save in 
 dealing with the government of men, in studying it, in promoting 
 it, in taking part in it, is to be found higher and finer exercise for 
 the best faculties of man ? The individual, taken by himself, 
 cannot develop institutions. His power and his skill must pass 
 with his passing, and if he is to enforce his personality and his 
 thought upon his fellows he must do so either through political in- 
 
14 Magna Ohaeta 
 
 stitutions or through that barbaric struggle in which might makes 
 right. True politics is the enemy of war, whether between indi- 
 viduals or between nations. It is the aim of true politics so to 
 establish the foundations of justice and so to lay open the road 
 to liberty that man may build upon the one and set his feet upon 
 the other with the assurance that his personal effort will not be in 
 vain and that he will be rewarded with the product of his own 
 successful activity. 
 
 The individual man, therefore, must live as a member of a group, 
 a family, a tribe, a society, a nation. In these he must act and 
 inter-act with others and so co-operate with them that by joint and 
 mutually helpful eifort they may bring into existence habits and 
 ways of doing things that must be done for the common weal, and 
 establish rules and laws for the doing of these things. These 
 habits and ways of doing things and the laws and rules for their 
 conduct are institutions — social institutions, political institutions, 
 religious institutions. In this way arise the family, the State, the 
 church, private property, freedom of speech, freedom of assembly, 
 representative government, and the manifold strtictures which the 
 foundations deep-laid in these institutions are suited to bear. 
 
 It is easy for men of our day, and particularly for Americans, 
 to understand all this. For two hundred years this process has 
 been going on before the eyes of ourselves, our fathers, and our 
 fathers' fathers; but neither King John nor the opposing barons 
 could possibly have understood the meaning of much of the lan- 
 guage that we now use so familiarly. Yet across this great gap of 
 time, filled with achievements and events that appall the imagina- 
 tion by their manif oldness and their importance, we can trace the 
 chain which binds Magna Charta to the work of this Convention. 
 The people of the State of New York inherited and brought across 
 the sea the political and social institutions of the seventeenth and 
 eighteenth century England. The Constitution of England was 
 their constitution, and into the rights and benefits of Magna Charta 
 they entered as the lineal descendants of those free men of Eng- 
 land to whom those rights and benefits had been assured forever. 
 When l^ew York was still a colony, Chatham, replying in the 
 House of Lords to the Marquis of Rockingham's speech on the 
 State of the ITation (January 22, 1770), said: "The Constitution 
 
Seven Hdndkedth Anniveesaey 15 
 
 has its political Bible, by whiob if it be fairly consulted, every 
 political question may, and ought to be determined. Magna Charta, 
 the Petition of Right, and the Bill of Rights form that code which 
 I call the Bible of the English Constitution."^^ These three great 
 documents mark the progress of the struggle between the barons 
 and the people of England with the Plantagenet, the Tudor, and 
 the Stuart kings, through which struggles the Government of Eng- 
 land was gradually transformed from a feudal monarchy into a 
 democracy in fact, with an elective kingship and an aristocratic 
 social system. Through the Declaration of Independence and the 
 successful war which followed, the American people assured to 
 themselves the benefits of democracy but revolted forever against 
 the kingship and a social system based on caste. The chain, there- 
 fore, between Magna Charta and the Constitution of the State of 
 New York, now undergoing scrutiny and revision at your hands, 
 as elected representatives of the people, is clear and complete. 
 
 The government of men and the guarantees of justice and lib- 
 erty have strangely lagged behind the other evidences and instru- 
 mentalities of civilization. When one reflects upon the learning, 
 the art, the architecture and the literature of the thirteenth cen- 
 tury it seems hardly conceivable that the King of England and 
 his barons should have been back at that elementary stage in the 
 development of liberty which the execution of the Great Charter 
 indicates; for the thirteenth century is one of the greatest and 
 most striking epochs in the whole history of mankind. It is the 
 century when thousands and tens of thousands of earnest and 
 mature students were assembled at Bologna, at Paris, and at Ox- 
 ford, to make the beginnings of those great universities which are 
 at once the glory and a chief mark of the progress of the modern 
 world. The architecture called Gothic was at the height of its 
 excellence, and some of those fine and splendid monuments, which 
 the freer men of the twentieth century are battering down and 
 crumbling into dust, were being built by the patient and skilful 
 toil of lord-ridden artists and builders. Roger Bacon was per- 
 forming a marvelous service in mapping out the field of knowledge 
 and even in suggesting, by what must have been intuition, some 
 
 11 Thaekeray, A Eistori/ of the Right Honourable ITiHinm Pitt, Earl of 
 Chatham (London, 1827), il:156. 
 
10 Magna Chaeta 
 
 of the most modern of our scientific inventions. The great Cathe- 
 drals of Lincoln, of York, of Chartres and of Bourges, were rising 
 in all their rich and compelling beauty. The storie-s of the Cid, 
 of the Holy Grail and of the Nibelungen, were being put into 
 deathless literary form. It was the century of Thomas Aquinas, 
 of Louis IX of France, and of Dante. It was, in fact, a century 
 when some of the classic achievements of mankind were going 
 rapidly forward in a score of ways; but government, justice, lib- 
 erty, lagged far behind. This was due, no doubt, to the harsh 
 grip, and in some degree to the attractiveness, of the feudal system, 
 which Professor Vinogradoff defines as " an arrangement of so- 
 ciety on local lines under the guidance of a land-owning aristoc- 
 racy." ^^ Nothing could oppose a stouter obstacle to the progress 
 of liberty than a system such as this. Each local lord was a des- 
 pot, and his despotism was based upon the tenure of land. Noth- 
 ing but an all-powerful absolute king or a world-shaking revolution 
 could overturn a system like that. The all-powerful absolute king- 
 came first, and the world-shaking revolution followed in due course. 
 It seems odd for a modern democrat to speak of the absolute mon- 
 archy as an instrument in the development of popular liberty, but 
 such it undoubtedly was. The tyrannical and despotic power over 
 the plain people that was ruthlessly exercised wherever the feudal 
 system reached, was divided among countless local magnates. Each 
 one was a despot strengthening and enriching himself at the ex- 
 pense of his feudatories and waging constant war against those 
 of similar rank who assiimed to be his equal. If the feudal system 
 was primarily a system of land tenure, it was secondarily and only 
 in slightly less degree a system of organized warfare. In any 
 case, the gainers were the feudal lords, the losers and the sufferers 
 were the people. The first step toward destroying absolutism was 
 to gather it together in one place where it could be dealt with 
 and where, if worse came to worst, its head could be cut off with 
 a single blow of the axe. This explains why Charles Stuart lost 
 his head at Whitehall in 1649, and why Louis Capet lost his out- 
 side the Tuileries Gardens in 1793. Both Charles and Louis paid 
 the extreme penalty, not for their ovsm personal misdeeds, not for 
 their own acts of omission and commission, but because the people 
 
 i^ English Society in Ihe Eleventh Century (Oxford, 1908), p. 208. 
 
Seven Hundeedth Anniveesaey 17 
 
 of England and of France, finding that all despotic and tyrannical 
 power had finally been gathered in the person of one absolute king, 
 determined to destroy it, not merely to punish the individual mon- 
 arch but to symbolize the end of an era and a regime. So it hap- 
 pens that the progre'ss toward liberty is by the tortuous and stony 
 path that leads from an absolutism, divided and dissipated among 
 a host of feudal lords, up through the absolute monarchy into 
 which all despotic power is gathered, on to its overthrow — we 
 say it with profound sadness — when necessary, by violence. 
 
 Lord Acton left us a striking, if unfinished, essay on the history 
 of freedom. ^^ Next to religion, he tells us, liberty has been both 
 the motive of good deeds and the common pretext of crime, from 
 the sowing of the seed at Athens 2,500 years ago until the ripened 
 harvest was gathered by men of our own race. He calls liberty 
 the delicate fruit of a mature civilization, and takes note of the 
 fact that in every age its progress has been beset by its natural 
 enemies, by ignorance and by superstition, by lust of conquest and 
 by love of ease, by the strong man's craving for power and by the 
 poor man's craving for food. At every stage of human history 
 the sincere and unselfish friends of freedom have been imfortu- 
 nately rare. The triumphs of liberty have been due to minorities, 
 who have, in season and out of season, kept the meaning of liberty 
 before the minds of men. The rule of the tyrant is tyranny, 
 whether he have one head or many. The principle of absolute 
 majority rule is as profovmdly immoral and as profovindly undem- 
 ocratic as is the principle of the divine right of kings. Majority 
 rule is a practical device for the working of free institutions, and 
 not a principle without limits or bounds upon which free institu- 
 tions may be based. Liberty is something more than the right to 
 agree with the beliefs and practices of another, whether that other 
 be a monarch or a majority. Tyranny is none the less odious when 
 it doffs the royal ermine and dons the garb of the people. 
 
 Lord Acton defines liberty as satisfactorily as it has been de- 
 fined by anyone. He says that liberty is the assurance that every 
 man shall be protected in doing what he believes his duty against 
 the influence of authority and majorities, custom and opinion. In- 
 
 13 History of Freedom and Other Essays (London, 1907). 
 
18 Magna Ohaeta 
 
 dividual liberty is the cornerstone of the free state, and the assur- 
 ances of Magna Oharta were given seven hundred years ago to the 
 free men of England and their heirs forever. Into that noble in- 
 heritance we have entered. 
 
 In celebrating the seven hundredth anniversary of Magna Charta 
 we celebrate one of the most notable happenings in the history of 
 the American people. Magna Charta, the Petition of Eight, the 
 Charter of Liberties and Privileges for the inhabitants of New 
 York and its dependencies, the Bill of Rights, the Declaration of 
 Independence, the Constitution of the United States and the Eman- 
 cipation Proclamation of Abraham Lincoln are chapters in one 
 long serial story. The story traces the movement of the English- 
 speaking race, from the old island home to the far-flung settlements 
 round about the globe, whether colonial or independent, toward 
 securing the liberty of the individual and the political institutions 
 that are based upon it. There is a constant ebb and flow of the 
 tide of authority that is easy to be measured against the rising 
 structure of liberty. In the ancient world the state assumed au- 
 thority not properly its own and severely limited personal free- 
 dom. In the mediaeval period government possessed too little au- 
 thority, and it suffered other and alien forces to intrude upon it. 
 In our modern days states fall first into one of these classes and 
 then into the other. They are for a time engaged in invading 
 the proper domain of liberty and then for a time they are engaged 
 in neglecting its protection. The surest test by which we may 
 judge whether a people is really free is the amount of security 
 enjoyed by minorities. Where the individual is as secure in his 
 opinion and his lawful practices as the majority are in theirs, al- 
 though without the authority of the majority to determine policies 
 and to choose courses of practical action, there true liberty exists. 
 Therefore, it is in pursuance of a sound political philosophy and 
 in accord with the teachings of history that the Constitution of the 
 State of New York first defines and assures the sphere of individual 
 liberty, and then erects and limits a government to carry on the 
 business of the State, to care for the common concerns of the peo- 
 ple, and to see to it that no man is so great or so powerful as to be 
 able to invade the liberty of any other man, however humble or 
 however weak. 
 
Seven Hundeedth Anniveesaey 19 
 
 There is then a most real and vital relationship between that 
 striking, half barbaric scene at Rnnnymede, hundreds of years be- 
 fore the name of America was known, and this convention of re- 
 visers of the fundamental law, assembled in the Capitol of the 
 State of New York. Imagination inspires this relationship with 
 reality and gives it genuine power. Look back across the tumbling 
 ocean and over the troubled and blood-stained centuries, and take 
 courage from the steady, if slow, progress of liberty among men. 
 Order had first to be established by whatever means were at hand ; 
 killing was once as natural as rising with the morning sun. When 
 order was established, then opportunty was offered for men to 
 exert their powers, to express themselves, to achieve, and to pos- 
 sess; and the history of western civilization is the story of what 
 happened. Under the rule of order came the struggle for liberty. 
 It was a struggle against false philosophies, against vanity, selfish- 
 ness and greed, against the grasping for power and the fortifying 
 of privilege, against the tyranny of the one and against the greater 
 tyranny of the many. The milestones that mark its path are far 
 apart, and one mile is often many, many times longer than another. 
 The road is narrow and steep and rough, and it leads sometimes 
 to the edge of precipices and by the side of impassable morasses. 
 Nevertheless the road is there, and the progress along it is plain 
 and easily marked through the ages. To define, to secure, and to 
 protect liberty, is the first and highest aim of the fundamental law. 
 If Magna Charta was, as has been sometimes said, a reactionary 
 document, it was reactionary only in that it revived and confirmed 
 liberties that had been forgotten and that had been invaded by 
 royal power. These liberties are part of man's nature and an 
 attribute of human personality. To deny them, to hamper them, 
 to invade them, is to install tyranny in the land. To take note 
 of them, to build upon them and to appeal to them, is to open 
 the door to that constructive progress whose limits are set only by 
 the spiritual aspiration, the intellectual power and the moral earn- 
 estness of man. 
 
 The Chaiemam-: 
 
 I beg to present to you the distinguished advocate and jurist, 
 William D. Guthrie. (Applause.) 
 
20 Magna Chart a 
 
 William D. Gdtheie : 
 
 To the student of American institutions it must appear singu- 
 larly impressive and instructive that the members of the Consti- 
 tutional Convention of the State of New York should pause in 
 their important work to celebrate the seven-hundredth anniversary 
 of the Great Charter of English Liberties and to look back rever- 
 ently through the centuries to the sources of our constitutional law 
 and to the days when our ancestors were laying the foundations of 
 civil liberty and political justice. It is, indeed, no exaggeration 
 to assert that Magna Charta marked the greatest political epoch in 
 the history of our race, that it saved England from becoming one 
 of the arbitrary and degrading despotisms which arose in Europe 
 after the overthrow of the feudal system, and that from its prin- 
 ciples sprang representative and constitutional government, with 
 all that these words have grown to mean to Americans. This cere- 
 mony must again emphasize the great truth, so often pointed out, 
 that everything which has power to win the obedience and respect 
 of men must have its roots deep in the past, and that the more 
 slowly an institution has grown, so much the more enduring is it 
 likely to prove. 
 
 Two hundred and eighteen years ago the Royal Governor of 
 New York is reported to have exclaimed to the legislature of the 
 Colony " There are none of you but are big with the privileges of 
 Magna Charta." And to-day, Mr. President, can it not be said with 
 equal force and pride that there are no Americans but are big with 
 the privileges of Magna Charta ? Long may that continue to be 
 true ! And to provide that the spirit of those privileges shall en- 
 dure forever, so far as lies in human power, is the highest and 
 noblest duty of every American constitutional convention. 
 
 Other speakers will treat of the historical and political aspects of 
 Magna Charta and of its reissues and confirmations by King after 
 King and Parliament after Parliament. I am to speak to you of 
 the legal value of some of the cardinal features of the Great Charter 
 as antecedents of principles which are closely connected with our 
 present political being and which still guide and invigorate our 
 system of constitutional law. Yet, my treatment of this far-reach- 
 ing and important aspect of the subject must necessarily be inade- 
 quate and imperfect, in view of the limited time at your disposal. 
 
Seven Huxdt;edth Axniveesaey 21 
 
 It is undoubtedly true that Magna ("harta contained much that 
 was old in 1215 and much that subsequently became antiquated 
 because inapplicable to changed conditions; but it crystallized at 
 that time, and served to perpetuate in permanent form, the funda- 
 mental principles of the liberties of Englishmen. Solemnly con- 
 firmed no less than thirty-seven times by seven Kings of England, 
 it naturally became in the eyes of Englishmen the embodiment of 
 their deepest and most firmly rooted rights and liberties and their 
 great and stirring battle-cry against tyranny. The reissue of 1225 
 still remains on the English statute books as in force and effect, 
 and an English historian has recently said that every act appearing 
 on their statute rolls is in a sense an act amending ilagna Charta. 
 
 The spirit of Magna Charta as it has thus survived has for centu- 
 ries inspired Englishmen and Americans, although the letter may 
 have died and most of its provisions may long ago have become ob- 
 solete and their exact meaning hidden under the ruins of the past. 
 Indeed, notwithstanding the fact that the particular provisions of 
 the Great Charter were frequently violated by King and Parlia- 
 ment after 1215, and at times for generations were neglected or 
 discarded, it cannot be doubted that, if the principles they embodied 
 had been observed, they would have secured permanent liberty and 
 constitutional government to England long before the seventeenth 
 century, and that only through disregard of those principles were 
 the oppression and tyranny of five centuries possible. 
 
 It may likewise be true, as some historians of the scientific school 
 are now contending, that the framers of the Great Charter and the 
 representatives of the English church, baronage and people gath- 
 ered on the meadows at Runnymcde on the 15th day of June, 1215, 
 had little or no grasp of the science of politics and of constitutional 
 principles as we understand them. It is probably true that they 
 had no very definite conception or comprehension of the theory of 
 representative government, or of the separation of governmental 
 powers, or of those inalienable rights of the individual which our 
 Declaration of Independence proclaimed, just as it is probably true 
 that very few of them could even read the language in which the 
 Great Charter was written. And it may be conceded that its 
 framers builded better than they knew, and that many of the tradi- 
 tions as to the intent, meaning and scope of its provisions — tradi- 
 
32 Magna Chauta 
 
 tions which were so potent and inspiring during the seventeenth 
 and eighteenth centuries — were founded, as is now said, upon 
 legends and myths. 
 
 Yet, conceding the existence of these traditions, it is indisputable 
 that they grew up and clustered around Magna Charta and served 
 to keep alive and perpetuate its spirit. They generated the senti- 
 ment that impelled men to patriotic and heroic sacrifice in the cause 
 of liberty ; they sustained generation after generation in the recur- 
 ring struggles for equality before the law; they formed and pre- 
 served a public morality which prevented violations of the princi- 
 ples of the Great Charter, and they were of incalculable inspira- 
 tion and encouragement to Englishmen and Americans, if not to 
 the whole world. It is the great traditions of Magna Charta that , 
 have made its heritage and service to humanity immortal. It is be- 
 cause of its traditions that Magna Charta is sacred to us, as it was 
 to our forefathers. Statesmen and lawyers, dealing with the prac- 
 tical problems of constitutional government, are unwilling to mini- 
 mize the value of Magna Charta and our debt to the generation that 
 forced it from King John because many of its underlying piin- 
 ciples may not have been fully grasped by its framers and many of 
 its traditions may be based on legends and myths. It is enough 
 that the true spirit of civil liberty and political justice was there. 
 
 Many of us, however, venture to believe that the unknown author 
 of the original Articles of the Barons or of the Great Charter itself 
 — if it was not the learned Stephen Langton, who had been edu- 
 cated at the University of Paris and was familiar with Roman and 
 canonical law and the charters of liberties which the Kings of 
 France had been granting to their subjects — knew far more of 
 the underlying and vivifying principles of jurisprudence and poli- 
 tics than some of our modern critics are willing to attribute to that 
 generation. But, however this may be, the genius and the political 
 instinct of our race must have guided them to the eternal truths 
 upon which the Great Charter was based, even though its authors im- 
 perfectly comprehended these truths, or did not comprehend them 
 at all. A single phrase like " the law of the land " in a political 
 document is often wiser, not merely than the masses who acclaim 
 it, but even than the leaders who adopt it, and it may serve to com- 
 press into a very small compass and preserve the relics of ancient 
 
Seven Hundredth Anniversary 23 
 
 wisdom, although later generations are frequently puzzled to de- 
 cipher its contents and discover its meaning. Such a phrase " may 
 lock up truths," as has been well said of the language of a nation, 
 " which were once well known, but which, in the course of ages, 
 have passed out of sight and been forgotten. In other cases it may 
 hold the germs of truth, of which, though they were never plainly 
 discerned, the genius of its framers caught a glimpse in a happy 
 moment of divination, . . . and often it would seem as though 
 rays of truth, which were still below the intellectual horizon, had 
 dawned upon the imagination as it was looking up to heaven." 
 
 First and foremost among the underlying and cardinal principles 
 of ilagna C'liarta and its vivifying spirit was the thought, then be- 
 ginning again to germinate throughout Europe, that the individual 
 has natural rights as against the government, and that those rights 
 ought to be secured to him by fundamental laws which should be 
 unalterable. Xo one can study the histoi'v of European politics 
 during the great constructive thirteenth century without being im- 
 pressed by the fact of the revival of this conception in men's minds, 
 not only in England but on the continent, manifesting itself in 
 varying forms and in dilfereut connections. I say revival, because 
 the same conviction had prevailed hundreds of years before in both 
 Greece and Rome, but had been cast aside and discarded for cen- 
 turies. 
 
 The idea that the fundamental laws of tlie land — the pious and 
 good old laws of Alfred and of Edward, as the English called them, 
 or les loi,s fondamentalcs, as the French were then calling them — 
 were unalterable and that any governmental regulation, or edict, or 
 statute to the contrary should be treated as void and null, was 
 plainly enunciated in the firstchapterof ^lagna Cliarta, where King 
 John grants to the freemen of the kingdom " all the underwritten 
 liberties, to be had and held by them and their heirs, of us and our 
 heirs forever," and in chapter sixty-one, where the King covenants 
 that he " shall procure nothing from anyone, directly or indirectly, 
 whereby any part of these concessions and liberties might be revoked 
 or diminished ; and if any such thing has been procured, let it be 
 void and null." It is certain that during the thirteenth and four- 
 teenth centuries the theory generally prevailed in England that the 
 concessions and liberties of the Great Charter had been granted 
 
24 IIagna Ciiaeta 
 
 forever and were unalterable by the King, or even by Parliament 
 itself. Thus, v/e find Parliament enacting in 1369, with the eon- 
 sent of Edward III., that the Great Charter of Liberties should be 
 " holden and kept in all points, and if any statute be made to the 
 contrary, that shall be holden for none." 
 
 One of the scholarly critics of jMagna Charta suggests that this 
 enactment of 13G9 was quite an " illogical theory " on the part of 
 the Parliament, because, to quote his language, " If Parliament had 
 power to alter the sacred terms of Magna Charta, it had power to 
 alter the less sacred statute of 1369 which declared it unalterable." 
 The conclusive answer to this kind of reasoning, as it must seem 
 at least to statesmen and lawyers, is that Magna Charta was then 
 regarded as something very different from and much higher than 
 any ordinary statute. The people of that day would have protested, 
 if the logic of Parliament had then been challenged by the learned, 
 that Magna Charta was a permanent charter of liberties and as such 
 not subject to amendment or nullification by mere statute. But 
 logical or illogical as the act of 42 Edward III. may have been 
 at the time, or may now seem to be to the scientists and logicians 
 of the twentieth century, it serves to show that in the fourteenth 
 century the English people understood and intended, and the King 
 and Parliament expressly agreed and conceded, that the liberties 
 guaranteed by the Great Charter, then being again and again con- 
 firmed, were unalterable, and that any statute to the contrary should 
 be " holden for none." 
 
 The spirit of that declaration still lives in every American con- 
 stitution. We certainly have here the antecedent of the great con- 
 trolling principle and the keystone of the whole structure of Ameri- 
 can constitutional law, that any statute in conflict with the funda- 
 mental laws, so far as we see fit to perpetuate them in constitutional 
 provisions, shall be void and null, in the language of the Great 
 Charter, or holden for none, in the language of the time of Edward 
 III. Chief Justice jMarshall in the great case of Marbury v. Madi- 
 son, in 1803, was but following these ancient declarations when, 
 speaking for the Supreme Court of the United States, he settled — 
 we hope for all time — the beneficent and indispensable doctrine 
 that a statute contrary to an American constitvttion must be treated 
 as void and null and holden for none. 
 
Seven Hundredth Anniveesaey 25 
 
 I do not overlook the fact that this idea of fundamental laws un- 
 changeable by statute long slumbered in England and that the con- 
 trary as to the legal supremacy of Parliament was subsequently 
 established. In studying this aspect of the Great Charter, we must 
 recall that the conditions of life in England during the thirteenth 
 and fourteenth centuries were very miich simpler than those exist- 
 ing later, and that it was not then contemplated, or at least only 
 vaguely and dimly, that the legislative power could change the laws 
 regulating the rights and duties of individuals as among themselves 
 or towards the government. The modern habit of imagining that 
 in legislation is to be found the panacea for all ills and of measuring 
 the efficiency of a government by the number of statutes it has pro- 
 duced, was unthought of. Probably the only legislative function in 
 the minds of Englishmen during the thirteenth and fourteenth cen- 
 turies was taxation, and as yet men hardly realized the necessity 
 for broader regulative or legislative powers. 
 
 However, the doctrine that the permanent fundamental princi- 
 ples of the laws of the land guaranteed by Magna Charta were un- 
 changeable and inviolable prevailed in England long after the 
 fourteenth century, and in fact was declared in the English 
 courts as late as the seventeenth century. Bonham's case is the 
 most familiar instance of that doctrine. The views of English 
 lawyers, judges and statesmen have changed in this respect, and 
 it is now settled that Parliament is supreme and that it can 
 amend or repeal Magna Charta in any respect it may see fit. 
 The changed view undoubtedly met with ready acquiescence, 
 partly because of the necessity for amendments of the law in 
 order to regulate and cope with changjlug and novel condi- 
 tions, partly because of the unwillingness of the English peo- 
 ple to leave questions of constitutional power to the courts, in view 
 of the dependence of the judges upon the crown, but principally 
 because of the confident belief that Parliament existed primarily 
 for the very purpose of upholding and protecting the rights and 
 liberties secured to the people by the Great Charter of Liberties, 
 and that the people could rely upon Parliament never to consent to 
 the violation of those rights and liberties. 
 
 Eepeatedly from the seventeenth century to our own day legisla- 
 tion has been criticised in Great Britain and Ireland on the ground 
 
26 Magna Chaeta 
 
 that it was in conflict with Magna Charta, and repeatedly the 
 strongest and most effective argument against proposed legislation 
 has been that it would violate the principles of the Great Charter of 
 Liberties. During the past thirty years thoughtful observers of 
 English politics have remarked that private property in England 
 is, on the whole, less secure from attack on the part of the govern- 
 ment in our day than it was at the time of the Stuarts. When- 
 ever an excess of class legislation and attacks on private property 
 shall lead Englishmen to place checks and restraints up-^n the 
 power of temporary majorities, so as more effectively to protect 
 personal and property rights — an event which, I believe, must 
 inevitably come to pass sooner or later — then the stirring battle- 
 cry will again be Magna Charta, and the result may be, return to 
 the spirit of the declarations of Magna Charta and of the statute of 
 Edward III., that any statute contrary to the law of the land guar- 
 anteeing the fundamental rights and liberties of the individual 
 shall be void and null and holden for none. And to make that 
 ancient, sound and honest principle really an effective protection 
 to the individual and to minorities, the courts of justice of England 
 may at last be empowered, as they are with us, to refuse to give 
 force and effect and to hold for none any statute in conflict with the 
 fundamental laws of the land. 
 
 Of vital impotance, equal to this idea of a permanent law of 
 the land safeguarding the fundamental rights and liberties of the 
 individual, was the express declaration in the first chapter of 
 Magna Charta that the English church, Anglicana Ecclesia, should 
 be free from interference on the part of the cro«vn and that her 
 rights should be entire and her liberties inviolable. In this pro- 
 vision we have the germ of an independent church and of the sepa- 
 ration of church and state. 
 
 It is reasonable to assume and, in view of the surrounding cir- 
 cumstances and the language then employed, it is highly probable 
 that the churchmen of that day, under the lead of Langton, who 
 was born of English parents and intensely patriotic, probably him- 
 self the author of that clause, conceived that the religion of the 
 English people should be free from governmental control, and that 
 the English church had interests and privileges independent of the 
 crown and independent likewise of the interests and policies of 
 
Seven Hundebdth Anniveesaey 27 
 
 Rome. At that very time the English churchmen, in co-operating 
 with the harons and people of England to secure Magna Charta, 
 were acting against the will of Rome, and, as we know, the Pope 
 promptly denounced the Great Charter and the patriot Primate, 
 because he considered that the Great Charter was deroga;tory to 
 the dignity of King John as a vassal of the Holy See. In this 
 provision of Magna Charta relating to the English Church, even if 
 it was disregarded for centuries, we recognize the idea of religious 
 liberty and of the American political principle separating church 
 and state, and likewise of the great principle underlying the noble 
 declaration in our own state constitution that " the free exercise 
 and enjoyment of religious profession and worship, without dis- 
 crimination or preference, shall forever be allowed in this State 
 to all mankind." 
 
 The provisions of the Great Charter relating to the administra- 
 tion of justice were undoubtedly those which were of principal 
 and vital concern to the people at large, as they were certainly, if 
 observed, those most essential for the security of their liberties. 
 The framers knew that it was in the courts that the King of Eng- 
 land would keep his promises, if at all, and that the King's govern- 
 ment would only be as good as his judges were learned, independ- 
 ent and impartial. In these provisions of ^lagna Charta we find 
 the principle of the separation and independence of the judicial 
 power and the soundest and highest conceptions of the adminis- 
 tration of justice, far in advance of any other document or enact- 
 ment of that age. 
 
 The framers had grasped the great truth that jurisprudence is 
 a science; that the law must be administered by men learned in 
 that science and bound to obey its rules and precedents ; that uni- 
 formity and certainty are essential to the administration of jus- 
 tice, and that the foremost political liberty is the right to justice 
 according to law and not according to the will of the judge or the 
 judge's master, or according to the judge's individual discretion 
 or notions of right and wrong. They had also conceived that 
 every Englishman was entitled as of absolute right to a day in a 
 court which would hear before it condemned, which would pro- 
 ceed upon notice and inquiry, and which would render judgment 
 only after a fair trial. The plain people of England knew full 
 
28 Magna Ohaeta 
 
 well that the struggle for their old laws — the laws of their land, 
 pious and good and fixed and permanent, as they devoutly believed 
 them to be — would be fruitless and vain unless they secured fixed 
 and permanent courts and learned, independent and impartial 
 judges. And they instinctively felt, if they did not clearly per- 
 ceive that the law was infinitely wiser than those who might be 
 called upon to administer it, and that, as Aristotle had declared 
 fifteen hundred years before, " To seek to be wiser than the laws 
 is the very thing which is by good laws forbidden." 
 
 It was Magna Charta that established in England the doctrine 
 of the rule of law administered in fixed courts by learned and in- 
 dependent judges bound to obey the law ; and it was Magna Charta 
 that established the greatest of all the English constitutional doc- 
 trines, that of the supremacy of the law over every official how- 
 ever high. When the Great Charter was being translated and ex- 
 plained in the cathedrals, churches and monasteries of England, 
 the people fully understood the tremendous significance and value 
 to them, determined as they were to establish a rule of law and put 
 an end to arbitrary decrees, of the famous covenant in chapter 
 forty-five that the King would " appoint as justices, constables, 
 sheriffs, or bailiffs only such as know the law of the realm and 
 mean to observe it well," and of the covenants in chapter seven- 
 teen that the " common pleas shall not follow our court, but shall 
 be held in some fixed place," in chapter eighteen that the petty 
 assizes shall be held in the county court, in chapter thirty-six that 
 the writ of inquisition shall be freely " granted, and never denied," 
 and in chapter forty that " To no one will we sell, to no one will 
 we refuse or delay, right or justice," which in time came to bo 
 interpreted as a universal guaranty of free and impartial justice 
 to all classes high and low. 
 
 For many generations in England and America it was believed 
 that the writ of Habeas Corpus, justly esteemed the great bulwark 
 of personal liberty, had its direct guaranty or at least antecedent 
 in Magna Charta. Such was the contention of counsel in the Five 
 Knights case of 16i27, and such was the declaration of the Peti- 
 tion of Right of 1628. This view is now being challenged on the 
 ground that the identical procedure subsequently developed was 
 not provided for in Magna Charta and was not in the minds of its 
 
Seven Hundredth Anniveesaby 29 
 
 authors. Even if this be so, the underlying principle cf chapter 
 thirty-six and its promise that the writ of inquisition should be 
 freely " granted, and never denied " naturally led in lime, after 
 the passing of trial by combat, to the right of speedy inquisition hy 
 grand jury and trial by petit jury. At any rate, the principle of 
 the writ of Habeas Corpus was for centuries assumed to be em- 
 bodied in Magna Charta. 
 
 Professor Dicey lecturing at Oxford on " The Law of thi' Con- 
 stitution " has well stated that, although the English Habeas Cor- 
 pus Acts declare no principle and define no rights, tlioy are for 
 practical purposes worth a hundred constitutional articles guaran- 
 teeing individual liberty. As in England, so with us. Withou!. 
 the writ of Habeas Corpus there would be no liberty wortliy of 
 the name and no rights of personal freedom of any practical value. 
 We have only to read the leading cases in our courts to realize how 
 great a part the writ has played and still plays in securing and ren- 
 dering effective the fundamental principles of American liber (ly. 
 
 In chapters twelve and fourteen, which deal with tlie subject 
 of taxation, Magna Charta contained the foundation of our repre- 
 sentative system and of the separation of the legislative from the 
 executive power. As has been suggested, the only legislative 
 function that the people of England in the thirteenth century con- 
 templated as closely affecting them or as likely to create any press- 
 ing grievance was that of taxation. It was, therefore, expressly 
 provided in the Great Charter that, aside from the three existing 
 feudal aids, more or less fixed, the power to impose taxes should 
 not be exercised without the consent of the commune consilium. 
 This common council is the body that fifty years later developed 
 into the famous Parliament of Simon de Montfort of 1265. 
 
 In all the controversies in regard to taxation subseqiiently aris- 
 ing, whether in Parliament, the courts, or the forum of public 
 opinion, it was always insisted that Magna Charta prevented taxa- 
 tion without the consent of Parliament, just as in the eighteenth 
 century our ancestors contended that Magna Charta prevented taxa- 
 tion without representation, that is, prevented the imposition of 
 taxes except by a legislative body in which the taxpayers were rep- 
 resented. We have only to refer to the arguments in the great 
 constitutional cases before the courts of England in the seventeenth 
 centurv, such as the famous Case of Impositions in the reign of 
 
30 Magna Chaeta 
 
 James I, and the still more famous Case of Ship-Money in tlie 
 reign of Charles I., to realize how much the people relied upon 
 Magna Charta as establishing the doctrine that Parliament alone 
 could impose taxes. 
 
 The counsel for Bate in the former and for Hampden in the 
 latter case may not have conceived the philosophical and scientific 
 theory of the separation of governmental powers elaborated by 
 Montesquieu in the next century, and they may not have argued 
 that taxation was essentially a legislative function and could not, 
 therefore, be exercised by the King; but in final analysis their 
 arguments were the equivalent when they asserted that Parlia- 
 ment alone could impose taxes. The judgment of a majority of 
 the court in the Ship-Money Case, as had been the judgment in the 
 Case of Impositions, was in favor of the crown, but the appeal to 
 the country cost Charles I. his head, and resulted ultimately in 
 vesting in Parliament the exclusive power to legislate and hence 
 to tax. If England had then had an independent judiciary 
 charged with the duty of obeying and enforcing the fundamental 
 law of the land, the taxes in both of these cases would have been 
 held contrary to the letter, as they were certainly contrary to the 
 spirit, of Magna Charta. 
 
 It is no answer to say that the Parliament of to-day finds its 
 prototype not in the old common council referred to in Magna 
 Charta, but in the Parliament of 1265, nor is it an answer to say 
 that the idea of taxation in its abstract form is essentially modern 
 and was quite unknown in 1215. I do not suggest that the peo- 
 ple of England in 1215 or even in 1265 understood the virtues of 
 the representative system, or the principles of taxation and of the 
 separation of powers. The point is that the direct consequence 
 of the provisions of Magna Charta was a Parliament based theoret- 
 ically at least on the representative idea as well as on the principle 
 that there could be no legislation without the consent of such Par- 
 liament. 
 
 The most famous of all the chapters of Magna Charta and the 
 most important and far-reaching from a juridical point of view is 
 undoubtedly the thirty-ninth, which provides that, " No freeman 
 shall be taken or imprisoned or disseised or exiled or in any way 
 destroyed, nor will we go upon him nor send upon him, except by 
 the lawful judgment of his peers or by the law of the land." 
 
Seven Hundredth Anniveesaey 31 
 
 The substance of this provision as to " the law of the land," 
 or its equivalent " due process of law," is of universal application 
 throughout the United States as a constitutional limitation upon 
 the powers of government, and is to be found not only in the Fed- 
 eral Constitution but in the constitution of nearly every state of 
 the Union. It is now firmly established in America and English 
 constitutional law, and is familiar knowledge, that the terms " the 
 law of the land " and " due process of law " are exactly equiva- 
 lent in meaning and l6gal force and effect. The earliest use of 
 the phrase " due process of law " in American constitutions seems 
 to have been in the Fifth Amendment to the Constitution of the 
 United States, ratified in 1Y91. None of the state constitutions 
 then in existence contained that term, but nearly all of them used 
 the phrase " the law of the land." 
 
 Until recent years, it had been assumed that the term " the 
 lawful judgment of his peers" in Magna Charta meant trial by 
 jury according to the modern understanding of that term, and that 
 the term " the law of the land " meant laws conforming to those 
 fundamental principles of justice which protect every individual 
 in the full enjoyment of life, liberty and property secure from 
 the arbitrary exercise of the powers of government. Such is 
 still the technical legal meaning of these two terms, respectively, 
 both in England and in America, although their practical effect 
 and operation are different with us, because of our system of writ- 
 ten constitutions which the legislative branch may not disregard 
 or violate. Both of these assumptions are now challenged as with- 
 out foundation in either the provisions or the history of the Great 
 Charter. 
 
 Some historians contend that Magna Charta could not have 
 meant trial by a jury of twelve and a unanimous verdict, because 
 such a jury, according to present information, did not exist iintil 
 the second half of the fourteenth century. But it is quite imma- 
 terial whether the exact form of our jury trial existed in England 
 in 1215, or when the Great Charter was subsequently reissued or 
 confirmed, provided that the foundations of that system had then 
 been laid. Is it not sufficient for us that the antecedents of the 
 modern jury system in all its three forms of grand jury, criminal 
 jury and civil jury existed at the time of ilagna Charta and were 
 
32 Magna Ciiaeta 
 
 preserved by it ? As the jury system developed with the changes 
 inevitably attending all such institutions of legal procedure and 
 machinery, the form for the time being became " the lawful judg- 
 ment of his peers " within the intent and meaning of the Great 
 Charter. In any event the latest confirmations were at a time 
 when the jury system as now in force was being firmly established. 
 It is, therefore, easy to understand how the provision " the lawful 
 judgment of his peers " came in time to guarantee the common 
 law jury of twelve with unanimity in verdict. 
 
 Thus, many, if not most, of our constitutional provisions have 
 come in time to apply to conditions not at all contemplated by 
 their framers but clearly within the principle and spirit of the 
 language used. Much of the efiicacy of our federal and state bills 
 of rights, or of any similar provisions which this Convention may 
 embody in the new constitution, would be practically nullified if 
 the language used were to be interpreted as being limited to the 
 particular conditions existing when they were adopted. It is 
 the spirit and expanding principles of constitutional provisions 
 that always control. The letter killeth. 
 
 A charter of liberties, a bill of rights, or a constitution is not 
 an ephemeral enactment designed to meet only the conditions ex- 
 isting at the time of its adoption. It embodies and perpetuates 
 permanent principles. It is designed to endure " forever ", in the 
 language of Magna Charta, and " to approach immortality as 
 nearly as human institutions can approach it," in the lofty phrase 
 of the great Chief Justice of the ITnited States. Under any other 
 rule of interpretation, IMagna Charta would have become anti- 
 quated long before the discovery of America. 
 
 By the phrase " the law of the land ", in chapter thirty-nine, 
 the fundamental principles and axioms of the existing law were 
 being perpetuated. Exactly what those fundamental principles 
 and axioms then were understood to be is not now capable of ex- 
 position. The judges and people of those days certainly had some 
 definite ideas of reasonably just and fixed rules of conduct ade- 
 quate for the solution of the simple questions arising in the contro- 
 versies then being submitted for adjudication. Had the judges 
 been pressed for a comprehensive or philosophical definition of 
 " the law of the land," they might have said that they would not 
 
Seven Hundkedtii Anniveksaey 33 
 
 attempt to define the term any more than they would attempt to 
 define justice itself, and that, as the Supreme Court of the United 
 States declared only a few years ago, it was better to ascertain the 
 intent of such an important phrase in a great constitutional docu- 
 ment by the gradual process of judicial inclusion and exclusion as 
 practical experience might dictate and the cases presented for 
 decision might require ; in other words, that their decisions would 
 in time sufficiently declare and perpetuate the principles of the> 
 law of 
 
 "A land of settled government, 
 
 A land of just and old renown, 
 
 Where freedom slowly broadens down 
 
 From precedent to precedent." 
 
 The phrase " the law of the land," as used in Magna Charta, 
 must have been intended at the time to inchide procedure as well 
 as substantive law, but the term " due process of law," now its 
 current equivalent, originally related only to procedure. A very 
 early, if not the earliest, use of the term " due process of law " 
 will be found in the statute of 1354, 28 Edward III., in which 
 it was provided that no person should be condemned without being 
 first broiight to answer by due process of the law, the exact word- 
 ing in the quaint ISTorman-French of the day being " saunz estre 
 mesne en respons par due proces de lei." As at the same time 
 the Great Charter was being expressly confirmed " to be kept and 
 maintained in all points," the provision in regard to due prores dr 
 lei in the act of 1354 was uudoubtedly intended to be supplemental 
 to the provisions of the Great Charter and to apply only to per- 
 sons being brought to trial in a court of justice. It is true that 
 Lord Coke in the seventeenth century used the phrase " due pro- 
 cess of law " as the equivalent of " the law of the land," but never- 
 theless in the contemporaneous Petition of Eight of 1628 mention 
 is made specifically of the " Great Charter of the Liberties of Eng- 
 land," and its provision as to " the law of the land," and then ref- 
 erence is made separately to the act of 28 Edward TIL and its 
 provision that no man should be. prosecuted "without being 
 brought to answere by due process of lawe." 
 
 The same distinction in the use of these terms will be foimd in 
 the carlv history of the State of 'Saw York. In the ISTew York 
 
34 Magna Ciiaeta 
 
 Charter of Liberties and Privileges of 1683, a clause speaks of 
 " being brought to answere by due course of law," evidently taken 
 either from the act of Edward III. of 1354, or the Petition of 
 Eight of 1628. The New York Constitution of l77Y used the 
 term " the law of the land," but did not use the term " due process 
 of law." In the New York Bill of Eights of 1Y87, we find the 
 phrases " the law of the land," " due process of law " and " due 
 course of law," and in section 4 the phrase " due process of law 
 according to the law of the land." Both terms, " the law of the 
 land " and " due process of law," are used with evidently the same 
 meaning in the present Constitution of the State of New York, that 
 is to say, " the law of the land " is used in section 1 of Article I. 
 and " due process of law " in section 6. The separate history of 
 each section, the former first appealing in the Constitution of 
 177Y, and the latter in the Constitution of 1821, may account for 
 the difference in terminology. 
 
 It would be interesting to trace the varying uses of these terms 
 in our forty-eight state constitutions, but that must be left for 
 some other occasion. A majority of the state constitutions, in- 
 cluding most of the recent constitutions, now contain the term 
 " due process of law." As that term is the one used in the Four- 
 teenth Amendment, which is applicable to all the States, it might 
 be preferable, for the sake of uniformity and certainty, to adopt 
 that form as less confusing. Moreover, the phrase " due process 
 of law " lends itself readily to a comprehensive and inclusive defi- 
 nition if we define the word " due " to mean just aiid appropriate 
 and the word " process " to mean substantive provision as well as 
 procedure. 
 
 Finally, it may be of interest to notice the sanction and security 
 devised for enforcing the covenants of Magna Charta. A body or 
 tribunal of twenty-five barons called executors was created in 
 chaj)ter sixty-one, who were to " be bound with all their might, 
 to observe and hold, and cause to be observed, the peace and liber- 
 ties we have granted and confirmed to them," and who were to have 
 power to compel the King himself, even by force, to keep the 
 promises he had made. The clause providing this security or 
 legal sanction was crude, but it was not necessarily an impracti- 
 cable innovation. Althoiigh the scheme failed utterly, it remained 
 
Seven Hundredth Anniveesaey 35 
 
 of immense value in principle. The principle established the right 
 of the subjects to compel the King of England to obey a body of 
 fixed laws outside and beyond his will ; it justified revolution for 
 just cause, and it inspired our forefathers in their struggle against 
 George III. Its influence upon sentiment as justifying revolu- 
 tion, particularly during the seventeenth and eighteenth centuries, 
 cannot well be overestimated. It served also to demonstrate the 
 futility of such a tribunal and securities, and to lead the English 
 people to look thereafter solely to the courts of justice and to 
 their Parliament for the protection of their rights and liberties. 
 The founders of our own republican governments may have been 
 taught by the failure of this provision of Magna Charta that it 
 would be unwise to create any such body with jurisdiction to en- 
 force constitutional provisions, and therefore left the enforcement 
 of constitutional limitations and the protection of the individual 
 and minorities to an independent non-political forum composed 
 of impartial judges learned in' the law and meaning " to observe 
 it well," according to the spirit of Magna Charta. 
 
 In closing his great commentaries on the Constitution of the 
 United States, Mr. Justice Story admonished the American people 
 that, altliough the whole structure of our constitutional liberty was 
 erected by architects of consummate skill and fidelity, with its 
 defences impregnable from without, it might nevertheless perish 
 in. an hour by the folly or corruption or negligence of its oidy 
 keepers, the people. If constitutional government and funda- 
 mental rights are to endure, they must be maintained and pre- 
 served by competent leaders and representatives of the people con- 
 stantly teaching the value of the traditions of Magna Charta and 
 the necessity of adhering to constitutional principles and observing 
 constitutional morality. It was Lincoln who said that "As a nation 
 of freemen we must live through all time, or die by suicide." But 
 we shall perpetuate free government and civil liberty only as we 
 adhere to two essential conditions: the one, that our fundamental 
 rights shall continue to be inviolable by the state, the other, that 
 they shall be equal. " If not inviolable, they are not rights, but 
 only enjoyments on sufferance ; if not equal, they are but privileges 
 of a class, whatever that class may be." 
 
36 Magna CiiAitTA 
 
 The Cjiaikman : 
 
 We have the very great pleasure of listening now for a few 
 minutes to representatives of that great body whose function it 
 has been to preserve for all people, in England and America, prin- 
 ciples of Magna Oharta and of all the constitutions. Personally, 
 I have the very great pleasure of presenting to you that honored 
 and beloved old Chief Judge of the highest court of our State, 
 Charles Andrews. (Applause.) 
 
 Hon. Chaeles Andrews : 
 
 Mr. President, Ladies and Gentlemen: I can add nothing to 
 the admirable statements which have been made to-night in respect 
 to the origin of Magna Charta and its influence upon all the sub- 
 sequent history of the world. 
 
 President Butler has shown that, prior to Magna Charta, there 
 was some vague recognition of the rights of Englishmen by English 
 kings; but Magna Charta was the first formal contract between 
 king and the leaders of the nation, recognizing the primal prin- 
 ciples which now constitute what is knovrai as civil liberty. But 
 these principles did not remain unchallenged ; they were set aside, 
 invaded, disregarded by absolute or masterful kings; and it was 
 only after centuries had elapsed that the great principles of the 
 Charter became the unquestioned and acknowledged inheritance 
 of the people of the English race. 
 
 Gradual development has been the rule of hviman progress ; it 
 has been illustrated in the constitutional systems of our own State. 
 The Constitution of 17Y7 was a sweeping recognition of the demo- 
 cratic principle. It imposed a check upon legislation by the ap- 
 pointment of a council. It listed the appointment of all the great 
 state ofiicers and of the county officers in their respective counties 
 in a council of appointment. 
 
 The Constitution of 1821 abrogated both of these provisions. 
 It vested in the Governor the nomination of judicial officers, and 
 provided that the Legislature should elect its great officers of the 
 State. 
 
 The Constitution of 1846 was the most radical and sweeping 
 change in respect to the rights of the people to participate in the 
 election of public officers. (Applause.) But the officers of State, 
 
Seven Hundeedth Anniveesaey 37 
 
 the officers of counties, and the officers of municipalities, the ap- 
 pointment of these was vested in the people, and to be elected by 
 them. (Applause.) 
 
 I have made, Mr. President, this very brief reference to the 
 Constitutional systems of our State, for the purpose of drav/ing 
 the inference that our present constitutional system is a growth 
 and not a new creation. 
 
 It has been formulated in the light of experience and by the 
 recognition from time to time of the capacity of the people of the 
 government to take a larger and a more direct participation in pub- 
 lic affairs. Indeed, the progress of the world has been upon evolu- 
 tionary, rather than volcanic lines. It has been the surest assur- 
 ance of reforms in society and in government that they have gradu- 
 ally taken place in the history of the world. 
 
 There was a distrust of the people, as I have said, in the first 
 Constitution of the State, but that has given way to the recognition 
 of the fact of the capacity and the right of the people to take a 
 larger share in the administration of the affairs of government. 
 (Applause.) 
 
 Constitutions, to be permanent, must represent the history, the 
 character, the sentiment and, perhaps, the aspirations of the people. 
 Unless they do this, they cannot long endure. It is not the parch- 
 ment, but it is the spirit which giveth life, and so long as the 
 spirit of liberty pervades our constitutional system, our govern- 
 ment and oi\T liberties are secure. (Applause.) 
 
 There is a just pride, which we take, as Americans, that we 
 live under a government by the people, but we are not to forget 
 that popular phrases, sometimes conceal projects inimical to true 
 liberty. There was a time when the phrase, " popular sover- 
 eignty " had its significance. We all remember the time, now 
 happily past, when this phrase was made the rallying cry by which 
 one section of the country sought to convert a free into a slave 
 state. It has been put forth as the reason for doctrines and 
 theories which would undermine the independence of the judiciary, 
 which would disturb the fixed term of office, and make it responsive 
 to the inconstant moods of the electorate. 
 
 Constitutional limitations are among the greatest of the safe- 
 guards of liberty. We cannot too often recall the wise words of 
 
38 Magna Oiiaeta 
 
 oue of the greatest English statesmen, that the just restraints of 
 the law are to be reckoned as among the liberties of the people. 
 
 I see before me the members of that great body assembled in 
 this State to revise the organic law. There will be differences of 
 opinion, but what is true and just generally emerges from fair and 
 sincere discussion; and I look with confidence that this dignified 
 and most important body will present to the people of this State 
 an organic law which shall strengthen and insure the liberties of 
 our people. (Applause.) 
 
 The Chairman : 
 
 These exercises will be concluded by remarks from a friend of 
 all of us, who has attained the extraordinary fame of becoming a 
 great lawyer after being a great judge. (Applause and laughter.) 
 I have the honor of presenting to you, the Honorable Alton B. 
 Parker. 
 
 Hon. Alton B. Paekek : 
 
 Mr.' President, Gentlemen of the Constitutional Convention, 
 Ladies and Gentlemen : If I were presumptions enough to believe 
 that I could add anything of history to the interesting addresses 
 which have been made by the distinguished speakers who have 
 preceded me, or by way of analysis of the great Charter itself, I 
 should not trespass upon your kindly courtesy by attempting to 
 make any addition. 
 
 You will permit me, therefore, to speak other than of the treatise 
 of the Charter and of its history. I like to look upon that picture 
 of the struggle for the great principles of English liberty, begin- 
 ning with the attempt of the great earls and barons and prelates 
 of the realm to wrest this Charter from King George — a charter 
 which, by the very remedies provided, indicates the trespasses, the 
 enormous trespasses upon the rights of the people. 
 
 But the struggle was not over, as you will remember, when John 
 signed that treaty. There continued the struggle between govern- 
 ment and the masses of England, never so strenuous as at the time 
 the Charter was granted. There were additions and the granting 
 of new charters, and the regranting of the old charters, acts thirty- 
 eight in all, before the bill of rights was finally adopted, a bill 
 
Seven Hundeedth Axxiveesaey 39 
 
 which contains those great principles of English liberty in the 
 phraseology with which we ar« so familiar. 
 
 I love to turn from that picture to another one, beginning eighty- 
 seven years later in this country ; beginning, so as to speak, with 
 a declaration of independence by the thirteen United States of 
 America, and drafted by Thomas Jefferson. 
 
 Then began a new step in the direction of broadening of the 
 liberties of the people. Those ancestors of ours who framed the 
 constitutions which began immediately to be prepared after the 
 Declaration of Independence were descendants in large measure of 
 Englishmen ; they were familiar with the principles and with the 
 struggle to secure those great principles of liberty ; the one thing 
 which they wished to do for themselves and for the generations 
 that were to come, as they hoped, for hundreds and thousands of 
 years in this country of ours was that they should enjoy to the full 
 those great principles of liberty which their ancestOTS had wrested 
 from government by so great a struggle. They determined at once 
 upon one proposition, and that was that in this country there 
 should be no steward of the public welfare, whatever his title might 
 be. They reached the conclusion that here should be attempted a 
 republic. There had been republics before, but here they intended 
 one entirely upon different lines. 
 
 But how should they be able to secure for all time to those con- 
 stituencies of theirs the benefit of these great principles of liberty ? 
 How could they be sure that when a government was once formed 
 there would not come into control of that government men as 
 despotic as kings, and czars and emperors? How could they be 
 sure that they would not use the power, — although they had re- 
 ceived it from the people — for the benefit of classes. They knew 
 that they could not be secure by any governmental organization 
 known down to that time. They were familiar with the history 
 of Kome. They knew that the people of Rome had been oppressed, 
 and that finally they had overthrown the government, dethroned 
 their kings, had formed a republic that Servius TuUius had 
 drafted, statutes or laws into which were written the liberties, the 
 principles and the rights for which they had been struggling. And 
 yet, within a hnndred years, although the republic still continued, 
 those statutes had in the main been swept away and the people of 
 Home enjoyed no more liberties than they did under the King. 
 
40 Magjsta Chaeta 
 
 At last our people here, those whom we affectionately call fathers, 
 hit upon this scheme of a supreme law which should be created by 
 the people, which could not be set aside by the executive or by the 
 legislative or the judicial departments, or all of them together; 
 that could only be amended by the people themselves. And into 
 that constitution, the first one that was adopted in this state, on 
 the 20th day of April following the Declaration of Independence, 
 they incorporated the principles of liberty, where they must remain 
 until such time as the people of the State of ISTew York, if they 
 ever do, take them out. 
 
 No set scheme of government had ever been suggested, or devised, 
 or tried before. It was a wonderful conception, as we all agree. 
 May it not be, and I say it reverently, that an angel came to those 
 wise men of that day and whispered to them, follow the star con- 
 stitution ; it will at last lead the children of men to seek the bless- 
 ings of liberty under democracy. 
 
 How we do foster. We have multiplied in population from 
 something like a little less than four millions until now we have a 
 hundred millions of people, — only one hundred and thirty years 
 have passed in between. Our school houses dot every hill and 
 dale throughout the United States; our universities are unsur- 
 passed anywhere in the world ; the comforts of the great masses of 
 our people surpass here by far what are to be found in any portion 
 of the world, and, last, our wealth has grown to the enormous sum 
 of $138,000,000,000,— more than that of Great Britain and 
 Ireland, Germany put together. 
 
 It would hardly seem as if there ever could have been a sug- 
 gestion made in this country that other methods than the amend- 
 ment of the Constitution by the people themselves in the manner 
 pointed out by them, through their advisers or through amend- 
 ments submitted, would have been seriously considered. But it 
 was for a little time, but it is all passing away now. 
 
 The statesmen of this country, the men who are familiar with 
 the struggle by which these liberties were secured, the men who 
 are familiar vwth the history of the development of this country, 
 the men who understood how important it was that the people 
 should keep forever in their own hands this Constitution, without 
 regard to party affiliations, presented to the people of these United 
 
Seven Hundejsdth Anniteesaet 41 
 
 States their views, in the last two or three years, officially and 
 otherwise, with a result that the tide is swinging back rapidly and 
 the people have come to tmderstand at last that there is something 
 more important than hastily amending a Constitution, and that 
 is not to amend it until the reason for the amendment is absolutely 
 assured. 
 
 One hundred and thirty-eight years ago, at Kingston, this Con- 
 stitution was promulgated and now, after all these years, there 
 have gathered together in this city, you gentlemen, who are the 
 advisers of the people of this State in the matter of the Constitu- 
 tion as to whether it shall be amended or not, and, if so, in what 
 particulars. It is the people acting here to-day, the people of this 
 State, speaking through representatives whom they have chosen 
 to meet and consult together and make recommendations. 
 
 I think I speak the general sentiment when I say that never 
 before in the history of this State has there been a Constitutional 
 Convention assembled more strictly representative of the people 
 of the State, and better qualified to discharge the important duties 
 which the people have committed to them, and when this work of 
 yours is over and the recommendation goes to the people to the 
 State to adopt and amend the Constitution as you propose it, then 
 the people will be given an opportunity to measure your work and 
 test it and when it is done and adopted, as I doubt not it will be, 
 it will be the work of the people of the State of New York. 
 
 Now, one word, and I trust you will not deem it an impertinence 
 for me to make the suggestion, that in the matter of amendments 
 to the Constitution, it is better to go a little slowly than too fast. 
 It is better not to make an amendment than to make a poor one. 
 It is better not to be radical in constitutions, but that constitutions 
 should be changed from time to time to meet not imaginations, 
 but the test of experience. 
 
 Thank you for your attention. 
 
 The Chaieman: 
 
 Whereupon at 10 :15 p. m. the meeting adjourned. 
 
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