Class jJ/'j^^ 
 Book_i__/i-^ 
 
 COPYRIGHT DEPOSrr. 
 

 
 LIBERTY DOCUMENTS 
 
LIBERTY DOCUMENTS 
 
 WITH CONTEMPORARY EXPOSITION 
 
 AND CRITICAL COMMENTS DRAWN 
 
 FROM VARIOUS WRITERS 
 
 ^cUcteli anil PrcparetJ 
 
 BY 
 
 MABEL HILL 
 
 State Normal School, Lowell, Massachusetts 
 
 3Et!tt£t(, iait^ an Cntrotittction 
 
 BY 
 
 ALBERT BUSHNELL HART, Ph.D. 
 
 Pkofessob of History in Harvard University 
 
 LONGMANS, GREEN, AND CO. 
 
 91 AND 93 FIFTH AVENUE, NEW YORK 
 
 LONDON AND BOMBAY 
 
 1901 
 
 \ — 
 
THE LIBRARY OF 
 
 CONGRESS, 
 Two Copies Received 
 
 MAY. 16 1901 
 
 Copyright entrv 
 
 CLASS A/XXo. No. 
 
 COPY B. 
 
 ^V 
 
 b"^ 
 
 Copyright, 1901, by 
 LONGMANS, GKEEN, AND CO, 
 
 All rights reserved. 
 
 UNIVERSITY PRESS • JOHN WILSON 
 AND SON • CAMBRIDGE, U.S.A. 
 
TO THE BIEMORY OF 
 
 MY DEAR FATHER 
 
PREFACE 
 
 THE design of this book is to direct students to the 
 evolution of constitutional government from the time 
 of the declared policy of Henry I. towards his subjects to 
 the present day. Its broader purpose is stated in detail in 
 the Introduction, but a few brief words of explanation and 
 acknowledgments of criticism and assistance give occasion 
 for this Preface. 
 
 The following chapters are the result of informal lectures 
 given before my classes at the State Normal School in LoweU, 
 Massachusetts, where we have for several years followed a 
 course of study in Constitutional History (as given in the 
 Outlines in the Appendix of this volume). In preparing stu- 
 dents for the profession of public school teaching, I have 
 deemed it wise to impress them with the underlying prin- 
 ciples of citizenship and government, and to prove to them 
 that the love of liberty is a noble inheritance of the past. 
 
 In the special study of these written bulwarks of our 
 freedom my aim has been to further the interest in original 
 documents by comparing the details of the different articles, 
 by discussing their bearing, by pointing out the development 
 of constitutional history, and by noting the evolution of one 
 document of liberty from the preceding one. The book 
 makes no pretensions to exhaustive exposition, either of the 
 documents discussed or of the critical material cited. It 
 is meant as an aid to teacher and pupil whose time for his- 
 torical research is limited, and it is but suggestive of the 
 possibilities of further intensive study. 
 
Vlil PRE FA CE 
 
 The outline on Constitutional History has served its pur- 
 pose with my own classes, and in the ninth grade of our 
 grammar department of the Practice School it is used as the 
 basis for more detailed work. The fact that a large majority 
 of the pupils who are to be benefited by public instruction 
 finish their technical education with the last year in the 
 grammar schools makes it imperative that a course in Ameri- 
 can institutions and politics be presented which shall make 
 intelligible to them the great race movement of which they 
 are an integral part. 
 
 At the same time that I offer this work to my fellows in 
 the profession, I beg to acknowledge my gratitude to those 
 friends who have assisted me with aid, advice, and criticism. 
 Professor Albert Bushnell Hart, of Harvard University, 
 Cambridge, and Judge Samuel P. Hadley, of Lowell, Mass., 
 have guided me materially in my research for contempora- 
 neous and latter-day comments. Mr. Henry A. Clapp, of the 
 Supreme Court of Massachusetts, has given most generously 
 of his time in making translations from certain Latin texts. 
 The Hon, James 0. Lyford, naval officer of customs, Boston, 
 Mass., has added to the varied suggestions and services of 
 years by following the work of the outline with critical 
 interest. I am indebted to the Librarians of the Harvard 
 Library, Massachusetts State Library, and the Lowell City 
 Library for their courteous liberality in the use of books. 
 
 I take this opportunity to thank the various authors and 
 publishers of copyright works from which material has been 
 drawn, for permission to reprint the passages desired. The 
 full titles of these works, with publishers' names, are given 
 in Appendix D at the end of this volume. 
 
 MABEL HILL. 
 Lowell, Mass., November, 1900. 
 
INTRODUCTION 
 
 THAT history is based on sources no longer needs asser- 
 tion ; that the public state papers of the nation are 
 among the most important sources for an understanding of the 
 true spirit of past times has been a familiar truth since Dr. 
 Stubbs put forth his immortal volume of Select Charters; no 
 careful student and no thoughtful teacher any longer attempts 
 to investigate or to present history without reading and think- 
 ing about the constitutional sources. Dr. Stubbs, however, 
 "was one of the men most aware that a document does not ex- 
 plain itself ; it was his practice in his classes to expound and 
 criticise his own charters. As the knowledge of, and publica- 
 tion of, materials has widened, choice and a suggestive arrange- 
 ment have become more and more important in making up 
 useful collections ; and there is now a great mass of intelligent 
 discussion by historians and publicists, which may be drawn 
 upon by those who have been unable to sit at the feet of the 
 masters. It is an encouragement to those most interested in 
 history that there seems a demand for reprints of properly 
 selected sources, and especially of constitutional documents 
 illustrated by some reference to contemporary writers, set forth 
 by adequate comment, and so arranged as to bring out the 
 development of a nation's constitutional progress. 
 
 Miss Hill, in her Liberty Documents, has undertaken to pro- 
 vide for what is believed to be an interest in the foundations 
 of English and American free government : at the same time 
 she has endeavoured to avoid some of the obvious difficulties in 
 
X INTRODUCTION 
 
 dealing with official and sometimes technical documents, by 
 supplementing them with the light and life of discussion. The 
 most approved method of historical teaching for schools of 
 various grades, seems to be a text-book, backed up by reading 
 both in the sources and in secondary books. Miss Hill has in 
 this book brought about an ingenious and promising combina- 
 tion of the two sorts of historical material ; and she has further 
 divided the authors whom she uses, according as they wrote at 
 or near the date of the documents, or as they came afterward, 
 and could use the learning that had meantime accumulated. 
 Out of the immense number of interesting and important docu- 
 ments in English and American constitutional history, Miss 
 Hill has chosen twenty-four documents, or groups of docu- 
 ments, which include the great monuments of Anglo-Saxon 
 liberty, and at the same time are sufficiently representative of 
 the mass of omitted papers. Each of these documents she has 
 prefaced with appropriate " Suggestions " which include some- 
 statement of the historical conditions under which the docu- 
 ment first saw the light, and in a few words shows the relation 
 of each piece with other materials of the same kind. Then 
 follows in each case the ' ' text " of the document. The earlier 
 pieces, such as Magna Charta and the Confirmatio Chartarum, 
 were written in Latin ; and therefore translations have been 
 reprinted, or made expressly for this volume. The English 
 documents of the seventeenth century were of course first 
 written with the spelling, capitalization, and abbreviations 
 usual at that time, and they have been transliterated by sub- 
 stituting the ordinary form for the long s, and reducing the 
 capitalization and spelling to modern usage. The documents 
 of the eighteenth and nineteenth centuries are in general re- 
 produced verbatim. In all cases an authentic text has been 
 examined and compared, and omissions are indicated. As an 
 example of the technical phraseology of English statutes, and 
 in order to put at the convenience of the schools the full text, 
 
INTRODUCTION Xl 
 
 of a document very hard to find in full, the Habeas Corpus 
 Act of 1679 has been reprinted exactly as it stands, as an 
 Appendix. 
 
 After the text of each document follows the next feature of 
 the book, the " Contemporary Exposition," especially helpful 
 because it shows why our ancestors felt that the great docu- 
 ments were essential to them and their posterity. The range 
 of writers on English constitutional matters is ample ; and Miss 
 Hill has been successful in finding plenty of appropriate and 
 striking criticisms. An example, and one of the most quaint 
 things in the book is Bishop Burnet's humorous account of the 
 parliamentary trick by which the Habeas Corpus Act came to 
 be passed. In the American part of the work good con- 
 temporary comment abounds, and most of the famous American 
 statesmen have been drawn upon, together with pamphleteers 
 and public speakers. 
 
 The fourth part of each chapter is the " Critical Comment," 
 made up of approved criticisms from a considerable number 
 of authors; here the best brief histories of England and the 
 United States have been drawn upon, together with such special 
 authorities on constitutional development as Stubbs, Hallam, 
 Pollock and Maitland, Gneist, Boutmy, Blackstone, Borgeaud, 
 Dicey, Curtis, Story, Bryce, Cooley, and Dunning. It is to 
 be understood that these extracts are not chosen to defend a 
 thesis or to favour any bias in Miss Hill's mind. She has taken 
 pains to draw from people of different and even of opposing 
 views; and to quote from authors who seem to sum up the 
 results of the discussions and investigations of a succession of 
 publicists. 
 
 The purpose of this work, then, is in brief to place some of 
 the most important memorials of history of the Anglo-Saxon 
 race in a suitable and illuminating setting ; the document itself 
 in a carefully verified text ; the opinions of contemporaries 
 who are interested and competent ; later comment of scientific 
 
xii IN TROD UCTION 
 
 writers, who have studied the documents through the perspective 
 of human progress. 
 
 For such a work Miss Hill has long felt the need ; in her own 
 work as a teacher in secondary and normal schools, she has 
 found it possible to interest young people in such studies of 
 the institutional side of English and American history; the 
 book therefore represents what may be, and actually is, taught 
 in schools. None of these documents are beyond the grasp 
 of a properly directed child of fourteen, and the hook is 
 easy to handle because it contains the materials for its own 
 discussion. 
 
 A glance at the Table of Contents will show the principles 
 which have been kept in mind in putting the book together. 
 First of all will be noticed the long reach of the selections : the 
 first document was written in 1101 ; the last report of a speech 
 is still hardly dry from the press. The results of eight centuries 
 of constitutional effort are stated or suggested in this volume. 
 
 The book is an example also of the modern discovery that 
 history is as continuous as geology; that so-called political 
 revolutions are, like earthquakes and volcanic outbreaks, the 
 sudden yielding to strains which have been growing more in- 
 tense from year to year and age to age, till there is no longer 
 a power of resistance. The book brings into clear and sharp 
 relief the great truth that English and American constitutional 
 history has run practically one course. The first ten chapters 
 show the growth of English personal liberty down to the be- 
 ginning of the eighteenth century; Chapters XI. to XIV. 
 exemplify the change in the eighteenth century and the 
 Revolution, from an English to an American form of statement 
 of the principles of freedom. From Chapter XY. to the end, 
 we find a record of the establishment and the growth of written 
 constitutional guarantees in America. These three periods are 
 really not separable from each other : for English institutions 
 run into Colonial charters, and thence into State constitutions. 
 
INTRODUCTION xiii 
 
 and the State constitutions were really a part of the general 
 system of which the Federal constitution became a correspond- 
 ing part. From the beginning to the end, there has been a 
 kind of rolling-up of guarantees for the liberty of the in- 
 dividual, so that Magna Charta, the Petition of Right, and 
 the Bill of Rights, the Declaration of the Stamp Act Congress, 
 the Declaration of Independence, Washington's Farewell Ad- 
 dress, and the Proclamation of Emancipation are all a part 
 of that conception of human rights which is the proudest out- 
 come of American experience. 
 
 The choice of documents must, of course, depend to some 
 degree upon the personal interest and judgment of the person 
 who may prepare such a work, although certain papers can no 
 more be omitted from the set of Liberty Documeiits than the 
 letter " e " can be left out of the alphabet. A part of the intel- 
 lectual outfit of all properly trained American children is Henry 
 First's Charter, Magna Charta, Confirmatio Chartarum, Habeas 
 Corpus, Bill of Mights and Act of Settlement, Declaration of the 
 Stamp Act Congress, Virginia Bill of Mights, Declaration of 
 Independence, Articles of Confederation, Northivest Ordinance, 
 Federal Constitution, Washington's Farewell Address, Dred 
 Scott Decision, Proclamation of Emancipation, and the Mecon- 
 struction Amendments. 
 
 All these are to be found within the following pages, and also 
 some selections less common but not less truly representative. 
 In Chapter III. will be found two very racy letters written by 
 Thomas Cromwell, which bring out a stalwart conception of 
 how to deal with a parliament. In Chapter V. is inserted a 
 very significant extract from a statute of 1429, which illus- 
 trates the steady though slow development of the protections 
 of liberty, and also shows the usual forms of royal statutes six 
 centuries ago. In Chapter VII. have been printed two of the 
 unsuccessful constitutions of the English Commonwealth ; they 
 deserve attention, because through the Colonial Charters they 
 
xiv INTRODUCTION 
 
 somewhat influenced the American written constitutions with 
 which we are familiar. Cromwell's speech to Parliament is an 
 interesting commentary upon the reasons for government and 
 misgovernment during the English Eevolution. Chapter XI. is 
 intended to show the nature of the Colonial governments and 
 their constitutional basis ; for such a purpose no one English 
 or Colonial official document could suffice, and a departure has 
 been made from the general principle by including Dummer's 
 Defence of the Charters, though it had no public sanction. This 
 piece, taken in connection with the Virginia Bill of Rights 
 (Chapter XIII.), builds the bridge between English and Ameri- 
 can institutions. Chapter XIX. is inserted in order to show 
 the principle of constitutional limitations on the powers of the 
 legislature, although the immediate question happens to be 
 that of chartering a bank. The reasoning of the Federal Court 
 has been applied to the principle of limited legislative powers 
 over personal relations. Chapter XX. has its justification in 
 the familiar truth that the Monroe Doctrine arose to a large 
 degree out of the feeling that the blessings of free government 
 should be assured to our Latin-American neighbours. In the 
 final chapter, XXIV., the relation of free and popular govern- 
 ment to the American colonies is brought out through the 
 President's messages and speeches on West Indian and Philip- 
 pine affairs, and the arguments of others for and against the 
 policy he has thus enounced. 
 
 Many other documents might have been appropriately in- 
 serted, but the twenty-four which appear below have a special 
 right to appear because of their own importance and because 
 of their relation with each other. The book moves from begin- 
 ning to end ; each piece has a carefully considered place in the 
 chain of human progress. 
 
 The Appendices deserve some special mention ; one of them 
 is the special text of the Habeas Corpus Act, alluded to above ; 
 another is the necessary list of authors quoted, showing pre- 
 
INTRODUCTION XV 
 
 cisely the editions used in each case, and thus making it easy 
 to enlarge the extracts. For two others, Miss Hill has pre- 
 pared an Outline of Essentials in English and American His- 
 tory, an expansion of a smaller list long used in her own 
 teaching. This outline is intended to show the relation of the 
 constitutional documents to narrative history, and thus to put 
 them on a proper background. 
 
 How shall Liberty Documents be most effectively used? For 
 the reader of history who likes to have at hand the text of the 
 great documents which he finds mentioned, this edition is es- 
 pecially serviceable, because, together with the text, he has the 
 illustrative comment which makes clear the whole ground. 
 Hence it may perhaps find a place in school, public, and private 
 libraries. 
 
 The most obvious use of such a book is to be the backbone 
 of a course in English and American constitutional develop- 
 ment, the Outlines in the Appendix serving for an analysis of 
 the whole subject, while the documents are to be a subject of 
 study and thought. Among the many collections of this kind 
 there is perhaps no other which brings together the materials 
 for a judgment of so many great constitutional principles ; for, 
 besides the text, the references at the end of each piece carry 
 the student to the best contemporaries and the best modern 
 writers. In a certain sense the book is a little historical library, 
 which, like all other libraries, is intended first to satisfy and 
 then to make discontented, first to furnish the material neces- 
 sary for the student and then to arouse him to search for more 
 material. 
 
 In any course in English history the book is available, — 
 first, because of its careful reprint of the greatest English 
 constitutional documents ; second, because of the side-notes, 
 which call attention to the development of constitutional thought 
 and practices. The documents are all such as will be useful 
 to pupil and student ; and the great lesson is enforced that the 
 
XVI INTRODUCTION 
 
 guarantees of English liberty extended also to the colonies, and 
 through them were worked out in our own political system. 
 
 In connection with a course in American Constitutional 
 History the book is useful because it makes easy the pre- 
 liminary study of the basis of American free institutions, in the 
 practice and the concrete records of England ; and fourteen of 
 the twenty-four chapters are devoted to distinctively American 
 utterances. 
 
 After all, the usefulness of a collection, like the usefulness 
 of a text-book, depends, to a large degree, upon the teacher. 
 One who is awakened to the importance of constitutional de- 
 velopment, to the study of charters and statutes and constitu- 
 tions, as expressing the aspirations of the people, will know 
 how to show young people that that side of history is interest- 
 ing. Perhaps, also, in these days of storm and stress, of the 
 creation of new political powers and influences, of undreamed 
 complications with the affairs of the rest of the civilized world, 
 it may be worth while to bring to the minds of young people 
 the truth that our personal liberty, our freedom to move about, 
 to take up callings, and to make the most of ourselves, is not 
 a privilege which defends itself ; that it behooves a free people 
 not to give up principles for which they and their forefathers 
 have been contending during more than eight centuries. 
 
 ALBERT BUSHNELL HART. 
 
CONTENTS 
 
 CHAPTER I 
 
 COKONATION OATH AND CHARTEE OF HENEY I. (1101) 
 
 Page 
 
 Suggestions 1 
 
 Documents : — 
 
 The Coronation Oath (1100) 1 
 
 The Charter of Henry I. at his Coronation (1101) 2 
 
 Contemporary Exposition : — 
 
 William of Malmesbury, Chronicles of the Kings of England . 5 
 
 Roger of Wendover, Flowers of History 6 
 
 Critical Comment: — 
 
 Hallam, Europe during the Middle Ages 7 
 
 Stubbs, Constitutiorial History of England 7 
 
 Green, Shoj-t History of the English People 7 
 
 Pollock and Maitland, History of English Law 7 
 
 Ransome, Advanced History of England 8 
 
 Gardiner, Students History of England 8 
 
 CHAPTER II 
 
 MAGNA CHAETA (1215) 
 
 Suggestions 9 
 
 Document : — 
 
 Magna Charta (June 15, 1215) 9 
 
 Contemporary Exposition : — 
 
 Roger of Wendover, Flowers of History 25 
 
 Critical Comment : — 
 
 Coke, First Institute of the Laws of England 27 
 
 Burke, Works 27 
 
 Hallam, Europe during the Middle Ages 27 
 
 Palgravb, English Commonwealth 27 
 
 Mackintosh, History of England 28 
 
 Sttjbbs, Constitutional History of England 29 
 
 Green, Short History of the English People 29 
 
xviii CONTENTS 
 
 Critical Comment, conlinued : — Page 
 
 Bagehot, English Constitution 31 
 
 Taswell-Langmead, English Constitutional History 31 
 
 Von Gneist, History of the English Parliament 32 
 
 Pollock and Maitland, History of English Law 32 
 
 Gardiner, Student's History of England 32 
 
 Ransome, Advanced History of England 32 
 
 CHAPTER III 
 
 THE SUMMONS TO PARLIAMENT (1295) 
 
 Suggestions 34 
 
 Document: — 
 
 Summons to Parliament (Oct. 3, 1295) 34 
 
 Contemporary Exposition : — 
 
 Thomas Cromwell, Letter to John CreJce 35 
 
 Summons in reign of Henry VIII. 36 
 
 Critical Comment : — 
 
 Hallam, Europe during the Middle Ages 37 
 
 Stubbs, Constitutional History of England 38 
 
 Taswell-Langmead, English Constitutional History 38 
 
 ^OSTii'En' Anglo-Saxon Freedom 38 
 
 BouTMY, English Constitution 39 
 
 Freeman, House of Lords 39 
 
 Ransome, Advanced History of England 39 
 
 Gardiner, Student's History of England 40 
 
 Adams, Critical Period of English Constitutional History ... 40 
 
 CHAPTER IV 
 
 CONFIRMATIO CHARTARUM (1297) 
 
 Suggestions 42 
 
 Document : — 
 
 " Confrmatio Chartarum" of Edward I. (Nov. 5, 1297) . ... 43 
 
 Contemporary Exposition : — 
 
 Bartholomew de Cotton, Historia Anglicana 45 
 
 Critical Comment : — 
 
 Hallam, Europe diiring the Middle Ages 45 
 
 Macaulat, History of England 46 
 
 Stubbs, Constitutional History of England 46 
 
 Taswell-Langmead, English Constitutional History 46 
 
 Feilden, Short Constitutional History of England 47 
 
 Von Gneist, History of the English Parliament 47 
 
 Taylor, Origin and Growth of the English Constitution .... 47 
 
CONTENTS xix 
 
 CHAPTER V 
 
 LEGAL PORMS AND JURY TRIALS (1429) 
 
 Page 
 
 Suggestions 49 
 
 Document : — 
 
 Statute: 8 Henry VI. Cap. 12 {\^2%) 49 
 
 Contemporary Exposition : — 
 
 Sir John Foetescue, De Laudibus Legum Anglue 51 
 
 Christopher Saint-German, Doctor and Student 54 
 
 Critical Comment : — 
 
 Blackstone, Commentaries on the Laws of England 54 
 
 Spence, Equitable Jurisdiction of the Court of Chancery ... 56 
 
 Forsyth, History of Trial by Jury 57 
 
 Green, Short History of the English People 59 
 
 Taswell-Langmead, English Constitutional History 60 
 
 Taylor, Origin and Growth of the English Constitution .... 63 
 
 Stevens, Sources of the Constitution of the United States ... 65 
 
 CHAPTER VI 
 
 PETITION OF RIGHT (1628) 
 
 Suggestions 66 
 
 Document : — 
 
 Petition of Right (June 7 , 1628) . 67 
 
 Contemporary Exposition : — 
 
 Charles L, Speech at Prorogation of Parliament (June 26, 1628) 72 
 
 Critical Comment : — 
 
 Hallam, Constitutional History of England 72 
 
 Nugent, Memorials of Hampden 72 
 
 Macatjlay, History of England 74 
 
 Creasy, Rise and Progress of the English Constitution .... 74 
 
 Taylor, Origin and Growth of the English Constitution .... 75 
 
 "VoN Gneist, History of the English Parliament 76 
 
 Gardiner, Constitutional Documents of the Puritan Revolution . . 76 
 
 HosMER, Anglo-Saxon Freedom 77 
 
 CHAPTER VII 
 
 ENGLISH WRITTEN CONSTITUTIONS (1648-1653) 
 
 Suggestions 78 
 
 Documents : — 
 
 The Agreement of the People (Jan. 15, \&49) 79 
 
 The Instrument of Government (Dec. 16, 1653) 85 
 
XX CONTENTS 
 
 Contemporary Exposition: — Page 
 
 Oliver Cromwell, First Speech to the Sixth Parliament ... 98 
 
 Critical Comment: — 
 
 Hallam, Constitutional History of England 100 
 
 Macaulat, History of England 100 
 
 Bagehot, English Constitution . 101 
 
 Green, Short History of the English People 101 
 
 Taswell-Langmbad, English Constitutional History 103 
 
 Taylor, Origin and Groivth of the English Constitution .... 103 
 
 Gardiner, Constitutional Documents of the Puritan Revolution . . 104 
 
 HoSMER, Anglo-Saxon Freedom 109 
 
 BORGEAUD, Adoption and Amendment of Constitutions . . . . Ill 
 
 BoRGEAUD, Rise of Modem Democracy 1 1 1 
 
 'R Ai<(SOME, Advanced History of England 112 
 
 Medley, Student's Manual of English Constitutional History . . 113 
 
 CHAPTER VIII 
 
 HABEAS CORPUS ACT (1679) 
 
 Suggestions 115 
 
 Document : — 
 
 Habeas Corpus Act {1679) 115 
 
 Contemporary Exposition: — 
 
 Bishop Gilbert Burnet, History of His Own Time . . , . 117 
 
 Critical Comment : — 
 
 Blackstone, Conunentaries on the Laws of England- 118 
 
 Creasy, Rise and Progress of the English Constitution . , . . 118 
 
 HvRV, Right of Personal Liberty 118 
 
 TxTEnso'!^, Libe}-ty of the Subject, etc. ........... 119 
 
 Taswell-Langmead, English Constitutional Histonj 119 
 
 jyiCEY, Study of the Law of the Constitution 120 
 
 May, Constitutional History of England .120 
 
 Taylor, Origin and Growth of the English Constitution . . . . 121 
 
 CHAPTER IX 
 
 THE BILL OF EIGHTS (1689) 
 
 Suggestions 122 
 
 Document : — 
 
 The Bill of Rights {Oct. 25, 16S9) 122 
 
CONTENTS XXI 
 
 Contemporary Exposition : — Page 
 
 Bishop Gilbert Burnet, History of His Own Time .... 132 
 
 Critical Comment : — 
 
 LuFFMAN, Citizen and Goldsmith 132 
 
 GuizoT, General History of Civilization 133 
 
 Ma.Ca.V'LXY, History of England 133 
 
 Green, Short History of the English People 134 
 
 Taswell-Langmead, English Constitutional History 134 
 
 Taylor, Origin and Growth of the English Constitution . . . . 135 
 
 Hosjier, Anglo-Saxon Freedom 135 
 
 Stevens, Sources of the Constitution of the United States . . . 136 
 
 ^ASSOME, Advanced History of England 136 
 
 CHAPTER X 
 
 ACT OF SETTLEMENT (1700-1701) 
 
 Suggestions 138 
 
 Document : — 
 
 Constitutional Provisions in the Act of Settlement (1700-1701) . . 138 
 
 Contemporary Exposition: — 
 
 Bishop Gilbert Burnet, History of His Own Time .... 140 
 
 Critical Comment : — 
 
 Blackstone, Commentaries on the Laws of England 140 
 
 Djcey, Study of the Law of the Constitution 141 
 
 Kansome, Advanced History of England 141 
 
 CHAPTER XI 
 
 SPIEIT OF COLONIAL RIGHTS (1721-1765) 
 
 Suggestions 142 
 
 Document : — 
 
 Extracts from "A Defence of the New-England Charters" (1721) . 142 
 
 Contemporary Exposition: — 
 
 Anonymous, A Plain State of the Argument between Great 
 
 Britain and her Colonies 144 
 
 Anonymous, Proposals for Uniting the English Colonies on the 
 
 Continent of America 146 
 
 Tho-mxs 'PowSAi.i,, Administration of the Colonies {17 Q5) . . , 147 
 
 Anonymous, America's Appeal to the Lmpartial World .... 148 
 
 Critical Comment : — 
 
 "W x-LS-R, An Appeal from the Judgments of Great Britain . . . 150 
 
 MA-RSTIXT.-L, History of the Colonies Planted by the English . . . 152 
 
 Thwaites, The Colonies 153 
 
xxil CONTENTS 
 
 CHAPTER XII 
 
 THE STAMP ACT CONTROVERSY (1765) 
 
 Page 
 Suggestions 155 
 
 Document : — 
 
 Declaration of Rights and Grievances of the Colonists in America 
 
 (Oct. 7, 1765) 155 
 
 Contemporary Exposition: — 
 
 Benjamin Franklin's Examination relative to the Repeal of the 
 
 American Stamp Act 158 
 
 James Otis, Rights of the British Colonies 159 
 
 Sir William Keith, Two Papers on the Subject of Taxing the 
 
 British Colonies in America 160 
 
 JosiAH TuCKEK, Letter from a Merchant in London to his Nephew 
 
 in America 161 
 
 Edmund Burke, Speech on Conciliation with America .... 162 
 William Pitt, Earl of Chatham, Speech in the House of 
 
 Lords 163 
 
 William BoLLEN, in J^ourna/s o/" Con/77-ess (1775) 164 
 
 Critical Comment : — 
 
 Macaulay, The Earl of Chatham 164 
 
 Chamberlain, The Revolution Impending ......... 164 
 
 CHAPTEE XIII 
 
 VIRGINIA BILL OF RIGHTS (1776) 
 Suggestions 166 
 
 Document : — 
 
 A Declaration of Rights (June 12, 1776) 166 
 
 Contemporary Exposition : — 
 
 George Washington, Works 169 
 
 John Adams, Works .... 170 
 
 Critical Comment: — 
 
 Hitchcock, American State Constitutions 173 
 
 Jameson, Treatise on Constitutional Conventions 174 
 
 Curtis, Constitutional History 1 '4 
 
 BouG^xvD, Adoption and Amendment of Constitutions . . ■ . 1/6 
 
 Bryce, American Commonwealth 1' ' 
 
 ScHOULER, Constitutional Studies 1'° 
 
 Yisn^Ti, Evolution of the Constitution of the United States . . . 178 
 
 Thorpe, Constitutional History of the American Republic ... 179 
 
 Channing, Students' History of the United States 180 
 
CONTENTS xxiu 
 
 CHAPTER XIV 
 
 DECLARATION OF INDEPENDENCE (1776) 
 
 Page 
 
 Suggestions 182 
 
 Document: — 
 
 The Declaration of Independence (July 4, 1776) 183 
 
 Contemporary Exposition: — 
 
 John Adams, Familiar Letters 188 
 
 David Ramsay, American Revolution 191 
 
 Thomas Jefferson, Works 192 
 
 Critical Comment: — 
 
 Webster, Works 192 
 
 Story, Commentaries 197 
 
 Livermore, An Historical Research 197 
 
 Gre'EJ'I, Short Histori/ of the English People 197 
 
 "VoN HoLST, Constitutional History of the United States .... 198 
 
 Lecky, England in the Eighteenth Century 199 
 
 Ellis, in Winsor, Narrative and Critical History of America . . 200 
 
 FlSKE, American Revolution 202 
 
 Lodge, American Revolution 202 
 
 CHAPTER XV 
 
 THE ARTICLES OF CONFEDERATION (1781) 
 
 Suggestions 204 
 
 Document: — 
 
 Articles of Confederation (1781) • « • 204 
 
 Contemporary Exposition : — 
 
 Pelatiah Webster, Remarks on a Pamphlet 216 
 
 George Washington, Works 218 
 
 Alexander Hamilton, Works 219 
 
 Thomas Jefferson, Works 219 
 
 Critical Comment: — 
 
 Story, Commentaries 220 
 
 Jameson, Treatise on Constitutional Conventions 221 
 
 MuLFORD, The Nation 221 
 
 VoN Holst, Constitutional History of the United States .... 223 
 
 Hart, Federal Government 224 
 
 Ford, Rise and Growth of American Politics 225 
 
 Stevens, Sources of the Constitution of the United States . . . 225 
 
 FiSKE, Critical Period of American History 225 
 
 Fisher, Evolution of the Constitution of the United States . . . 226 
 
XXIV CONTENTS 
 
 CHAPTER XVI 
 
 THE NORTHWEST ORDINANCE (1787) page 
 
 Suggestions 227 
 
 Document: — 
 
 The Ordinance of 1787 228 
 
 Contemporary Exposition: — 
 
 Nathan Dane, in the Cutlers' Life ofManasseh Cutler .... 237 
 
 Critical Comment: — 
 
 Webster, Works 238 
 
 Chase, Sketch of the History of Ohio 239 
 
 Bancroft, History of the United States 240 
 
 Burnet, Early Settlement of the Northwest Territory 240 
 
 Hoar, Oration at Centennial at Marietta 240 
 
 Hinsdale, The Old Northwest 241 
 
 Cutlers, Life of Manasseh Cutler 242 
 
 CHAPTER XVII 
 
 THE CONSTITUTION OF THE UNITED STATES (1787) 
 
 Suggestions 244 
 
 Document: — 
 
 Constitution of the United States of America (Sept 17, 1787) . . 245 
 
 Contemporary Exposition: — 
 
 Benjamin Franklin, Speech on the Last Day 264 
 
 George Mason, Address to the Citizens of Virginia 267 
 
 The Federalist (No. XLV.) 267 
 
 Alexander Hamilton, Works 268 
 
 George Washington, Works 269 
 
 John Dickinson, Fabius Letters 271 
 
 Tench Coxe, Examination 271 
 
 Thomas Jefferson, Works 272 
 
 Critical Comment: — 
 
 Webster, Works 273 
 
 Stort, Commentaries 274 
 
 Gladstone, Kin Beyond Sea 275 
 
 COOLEY, Constitutional Law 276 
 
 HuRD, Theory of our National Existence 278 
 
 Smith, in Jameson's Essays on Constitutional History , . . . . 279 
 
 Hart, Federal Government 280 
 
 Stevens, /Sources ©/"^^e Constitution of the United States . . . 281 
 
 Brtce, American Commonwealth 282 
 
 Thorpe, Constitutional History of the American People .... 283 
 
 McLaughlin, Social Compact and Constitutional Construction . . 284 
 
CONTENTS XXV 
 
 CHAPTER XVIII 
 
 WASHINGTON'S FAEEWELL ADDRESS (1796) 
 
 Page 
 
 Suggestions 286 
 
 Document: — 
 
 Washington's Farewell Address to the People of the United States 
 
 (Sept. 17, 1796) 286 
 
 Contemporary Exposition : — 
 
 Jonathan Mitchell Sewall, Oration 306 
 
 Thomas Paine, Oration 307 
 
 Joseph Bltth, Eulogy 308 
 
 John M. Mason, Oration 308 
 
 George R. Minot, Oration 308 
 
 Critical Comment : — 
 
 Sparks, George Washington . 309 
 
 Binnet, Inquiry into the Formation of Washington's Farewell 
 
 Address 309 
 
 Olnet, Growth of our Foreign Policy 310 
 
 CHAPTER XIX 
 
 THE EXTENT OF FEDERAL POWERS (1819) 
 
 Suggestions 312 
 
 Document: — 
 
 Decision in the Case of M'Culloch vs. the State of Maryland 
 
 (1819) 312 
 
 Contemporary Exposition: — 
 
 Anonymous, in Niks' Weekly Register . . 316 
 
 Critical Comment: — 
 
 Story, Commentaries 318 
 
 Hare, American Constitutional Law 319 
 
 WiLLOUGHBY, Supreme Court of the United States 319 
 
 Sumner, History of Banking in the United States 319 
 
 CHAPTER XX 
 
 LIBERTIES OF OTHER AMERICAN PEOPLES (1823) 
 
 Suggestions 321 
 
 Document: — 
 
 The Monroe Doctrine (Dec. 2, 1823) 321 
 
XXVI CONTENTS 
 
 Contemporary Exposition:— P^ge 
 
 John Quincy Adams, Memoirs 323 
 
 Thomas Jeffekson, Complete Works .......... 325 
 
 James Madison, Works 326 
 
 Daniel Webster, Works 327 
 
 Critical Comment: — 
 
 Dana, Wheaton's Elements of International Law 329 
 
 VoN HoLST, Constitutional History of the United States .... 329 
 
 MoKSE, John Quincy Adams 330 
 
 Gilman, James Monroe 331 
 
 ScHOULER, History of the United States 332 
 
 Tucker, The Monroe Doctrine 333 
 
 Cleveland, Special Message, Dec. 17, \ 895 334 
 
 Olney, Letter to Mr. Bayard 334 
 
 Woolset, Arnerica's Foreign Policy 336 
 
 McMaster, With the Fathers 337 
 
 Reddaway, The Monroe Doctrine 337 
 
 Hart, The Monroe Doctrine 338 
 
 CHAPTER XXI 
 
 THE RIGHTS OF SLAVES AND OF THEIR RACE (1857) 
 
 Suggestions 340 
 
 Documents: — 
 
 Extracts from the Opinion of the Court in the Dred Scott Decision 
 
 (March 6, 1857) 340 
 
 Extract from Justice Benjamin R, Cwtis, dissenting (1857) . . . 346 
 
 Contemporary Exposition: — 
 
 T. H. Benton, Examination of the Decision in the Dred Scott Case 349 
 
 George Bancroft, in Pulpit and Rostrum . 351 
 
 Horace Greeley, American Conflict 352 
 
 Henry Wilson, Rise and Fall of the Slave Power in America . 353 
 
 Critical Comment: — 
 
 Von Holst, Constitutional History of the United States .... 354 
 
 ScHOULER, History of the United States 354 
 
 Rhodes, History of the United States 356 
 
 Bryce, American Commonwealth 356 
 
 CHAPTER XXn 
 
 EMANCIPATION OF THE SLAVES (1862-1863) 
 
 Suggestions 358 
 
 Documents : — 
 
 Preliminary Proclamation of Emancipation (Sept. 22, 1862) . . 358 
 
 Final Proclamation of Emancipation [Jan. \, \8()5) 362 
 
CONTENTS xxvii 
 
 Contemporary Exposition : — Page 
 J. A. Cravens, Speech in House of Representatives against Eman- 
 cipation 364 
 
 Benjamin F. Thomas, Speech in House of Representatives for 
 
 Emancipation 365 
 
 IT. S. Grant, General Order 366 
 
 F. B. Carpenter, Six Months at the White House 366 
 
 Critical Comment: — 
 
 Johnston, The United States : Its History and Constitution . . 367 
 
 NiCOLAY AND Hay, Abraham Lincoln : A History 368 
 
 Pierce, Memoir and Letters of Charles Sumner 369 
 
 Dunning, Essays on the Civil War and Reconstruction .... 369 
 
 Morse, Abraham Lincoln 370 
 
 McCall, Thaddeus Stevens 370 
 
 Bancroft, Life of William. H. Seward 371 
 
 Taebbll, Life of Abraham Lincoln 371 
 
 CHAPTER XXIII 
 
 THE RECONSTRUCTION AMENDMENTS (1865-1870) 
 
 Suggestions 373 
 
 Documents : — 
 
 Thirteenth Amendment (1865) 373 
 
 Fourteenth Amendment (1868) 373 
 
 Fifteenth Amendment (1870) 375 
 
 Contemporary Exposition : — 
 
 A. H. Coffroth, of Pennsylvania, in Congressional Globe . . 375 
 
 J. S. Brotvn, of Wisconsin, in Congressional Globe .... 376 
 
 James G. Blaine, Twenty Years of Congress 376 
 
 Critical Comment: — 
 
 Lowell, Prose Works 380 
 
 CooLEY, Constitutional Law 381 
 
 Bryce, American Commonwealth 381 
 
 Dunning, Essays on the Civil War and Reconstruction .... 382 
 
 McLaughlin, History of the American Nation 384 
 
 Hart, Salmon Portland Chase 386 
 
 CHAPTER XXIV 
 
 LIBERTY IN UNITED STATES COLONIES AND DEPENDEN- 
 CIES (1898-1899) 
 
 Suggestions 388 
 
 Documents : — 
 
 Extracts from President McKinley's Annual Message (Dec. 5, 1898) 388 
 
 Extracts from President McKinley's Annual Message (Dec. 5, 1899) 392 
 
xxviii CONTENTS 
 
 Contemporary Exposition :— Page 
 
 Pkesident William McKinley, Home Market Speech . . . 393 
 
 Secretaet John D. Long, Home Market Speech 399 
 
 KiCHAKD Olney, Groioth of our Foreign Policy 401 
 
 Critical Comment: — 
 
 Adams, Imperialism 402 
 
 Randolph, Foreign Policy of the United States 403 
 
 Sumner, Conquest of the United States by Spain 404 
 
 ScHUEZ, American Imperialism 406 
 
 Hoar, No Constitutional Power to conquer Foreign Nations . . . 408 
 Burgess, Hoiv may the United States govern its Extra- Continental 
 
 Territory? 411 
 
 Hart, Territorial Problems . 412 
 
 Abbott, Expansion, but not Imperialism 414 
 
 Lodge, Retention of the Philippine Islands 416 
 
 GiDDiNGS, Democracy and Empire 421 
 
 APPENDICES 
 
 APPENDIX A. — Essentials in English Constitutional History 423 
 
 APPENDIX B. — Essentials in American Constitutional His- 
 tory 427 
 
 APPENDIX C — Text of THE Habeas Corpus Act, 1679 ... 431 
 
 APPENDIX D. — List of Authors Cited 440 
 
 INDEX 449 
 
LIBEETY DOCUMENTS 
 
 Chaptee I 
 
 CORONATION OATH AND CHARTER 
 OF HENRY L (1101) 
 
 SUGGESTIONS 
 
 This Charter was published by Henry I. on his accession to the 
 Crown. Copies were despatched to the several counties and depos- 
 ited in the principal monasteries. The Charter is in form an ampli- 
 fication of his Coronation Oath, the exact words of which are found 
 in the form used at the Coronation of King Ethelred II. [978-1016]. 
 
 Before reading the Coronation Oath and Charter of Liberties of 
 Henry I. the elementary history of Teutonic migration should be 
 examined critically, and the causes which led the Teuton to settle in 
 Britain should be noted. 
 
 The partial amalgamation of the Teutonic people with the Celtic 
 aborigines in Britain during the period of the Heptarchy ; the strong 
 characteristics of love of liberty and freedom of government which 
 mark the race throughout its political history, and which are dis- 
 coverable in their primitive institutions ; the development of the land 
 tenure ; and the feudal system as individualized by William I. in 
 organizing Norman rule in Engiaiid ; — each of these essential histor- 
 ical conditions must be examined before this document and Henry's 
 policy can be fully understood. 
 
 The charter itself demands attention before other documents can be 
 considered, because it contains, though possibly unnoticeable at the 
 first reading, the great doctrine of the future — the equality in rights 
 of freemen. 
 
 For Topics covering such expository reading note Essentials in 
 Early Teutonic History, Appendix A. 
 
 DOCUMENTS 
 The Coronation Oath (iioo) 
 
 In the name of Christ I promise these three things William 
 
 to the Christian people over whom I rule. In the ^V^^,!*^,' q'^'^* 
 
 first place that I will endeavour and use all material translated by 
 
 means in order that the Church of God and all the 1^,™'^"^ ^- , 
 ^ ,„,,,., . , , Clapp, Clerk 
 
 people of Christ may enjoy a true peace under our Sup. Jud. Ct. 
 
 government for all time; next, that I will interdict of Mass. (1900) 
 
 1 
 
HENRY L'S CHARTER 
 
 [Ch. I 
 
 robbery and all forms of injustice; third, that in all 
 judicial proceedings I will advance justice and 
 mercy, in order that to me and you the gracious 
 and merciful God may extend his mercy. 
 
 The Statutes 
 of the Realm, 
 i. 1, translat- 
 ed by Henry 
 A. Clapp. 
 (1900) 
 In form an 
 amplification 
 of tlie cove- 
 nant made 
 by tbe king 
 in his coro- 
 nation oath. 
 Tliis is the 
 only legisla- 
 tive enact- 
 ment during 
 the reign of 
 Henry I. 
 See Magna 
 Charta, Art. i 
 
 The Vassals : 
 see Magna 
 Charta, Art. ii 
 "Men" 
 wherever 
 used in this 
 charter 
 means " feu- 
 dal depend- 
 ents." 
 
 Eelief," a 
 payment in 
 money to the 
 king by the in- 
 coming heir 
 vipon admis- 
 sion into an 
 inheritance. 
 This was de- 
 manded by 
 
 The Charter of Henry I. at his Coronation (1101) 
 
 In the year of the Incarnation of our Lord one 
 thousand one hundred and one. Henry, son of 
 King William, after the death of his brother Wil- 
 liam, by the grace of G-od King of the English, to 
 all the faithful sends greeting. 
 
 1. Know ye that I have been, by the mercy of 
 God and by the barons in council, crowned king of 
 this same kingdom of all England; and since the 
 kingdom has been oppressed by unjust exactions I, 
 through the fear of God and the love I have to- 
 wards you, do in the first place make free the holy 
 church of God, so that I will neither sell nor put to 
 rent, nor upon the death of an archbishop or of a 
 bishop or of an abbot wall I accept anything from 
 the demesne of the church or from its men until 
 a successor has taken the place. And all evil 
 customs by which the kingdom of England has 
 been unjustly oppressed I will do away with, — 
 which evil customs I herein indicate: 
 
 2. If any one of my barons, or of my earls, or 
 of any other vassal who hold their estates of me 
 shall die, his heir shall not redeem his land as he 
 did in the time of my brother, but shall relieve 
 said land by just and lawful reliefs. In like 
 manner the men of my barons shall relieve their 
 lands from those of w-hom they hold, by a just and 
 lawful relief. 
 
 3. And if any of my barons, or of any^ other of 
 my men, shall wish to give in marriage his daughter, 
 or his sister, or his niece or other female relations, 
 let him consult me in the matter ; but neither will 
 I receive anything from him for the permission nor 
 
1101] TEXT 3 
 
 will I forbid him to give her in marriage unless he Henry I., as 
 
 shall wish to join her to one of my enemies. And cessors.^^But 
 
 if upon the death of a baron, or of an}' other of the promise 
 
 my men, a daughter shall survive as his heir I will a^^Jtixrn'^V^ 
 
 give her in marriage with her lands, after taking the equitable 
 
 counsel of my barons. And if, upon the death ?^^^ '^"f**i'?i 
 
 '' ' ^ instead of the 
 
 of a man, his wife shall survive and shall be cruel exac- 
 
 without children she shall have her dowry and tions made 
 
 T T -11 J • 1 . ^^ ^'^^ reigns 
 
 right to marry, and I will not give her m mar- of Wm. I. 
 
 riage to any husband except in accordance with ^^<i y^^'oi. II. 
 her wish. Marriage: 
 
 see Magna 
 
 4. If a wife with children shall survive her hus- Charta, 
 
 band, such a one shall have her dowry and right to •^^*'- ^"^• 
 
 maiT}' whilst she properly preserves her relation (to 
 
 the king as lord paramount), and I will not give 
 
 her in marriage except in accordance with her wish. 
 
 And the guardian of the estate and the children 
 
 shall be either the wife or some one of the near 
 
 kindred who ought justly so to be. And I direct 
 
 that my barons conduct themselves in like manner 
 
 towards the sous, daughters, or wives of their 
 
 men. 
 
 5. The common tribute for viintage which was "Common 
 collected through cities and counties and which was tribute " 
 
 . , ,. ^ TT-- T-. 1 T J, • 11, (inonetagiuru) 
 
 not known in the time or King Kdward, this shall -^as a pay- 
 not be from henceforth, and I altogether forbid it. ment by the 
 If any one, whether an officer of the mint or another, prevent^ de- 
 be taken with false money about him, let due justice preciation or 
 be done in the matter. coinTe.''^ 
 
 6. All suits and dues which were owing to my 
 brother I forgive, excepting my just rents, and 
 excepting those which were agreed upon for the 
 inheritances of others or for those properties which 
 more justly pertained to others. And if any one 
 has agreed to give anything on account of his own 
 inheritance, that I forgive, together with all reliefs 
 which were agreed to be given for actual 
 inheritances. 
 
HENRY i:S CHARTER 
 
 [Ch. I 
 
 See Magna 
 Charta, Art. 
 xxvii. 
 
 The estate 
 was to be 
 distributed 
 as the de- 
 ceased ought 
 to distribute 
 it, — a por- 
 tion to tlie 
 churcli in- 
 cluded. 
 
 See Magna 
 Charta, Art, 
 
 XX. 
 
 The only un- 
 popular 
 clause in 
 the charter. 
 
 William I. 
 
 Edward the 
 
 Confessor, 
 
 1042. 
 
 This article 
 is really in- 
 tended to 
 protect the 
 
 7. And if any of my barons or feudal dependents 
 shall fall sick, according as he shall give away or 
 shall arrange to give away his money, I concede 
 that it shall be given. But if, prevented by military 
 service or physical infirmity, he shall not give away 
 his money or arrange to give it, his wife or children 
 or relatives and lawful heirs shall divide it up for 
 the good of his soul as shall seem best to them. 
 
 8. If any of my barons or feudal dependents 
 shall incur a forfeiture, he shall not give surety in 
 the way of an arbitrary mulct of money as he did in 
 the time of my father or my brother, but according 
 to the mode of forfeiture he shall make reparation 
 as he would have made it before my father's time, 
 in the time of my other predecessors. But if he 
 shall have been convicted of treason or an infamous 
 crime, as shall be just so he shall make reparation. 
 
 9. All murders previous to the day of my coro- 
 nation I pardon, and for those which shall be 
 committed henceforth just reparation shall be made 
 according to the law of King Edward. 
 
 10. The forests I have, with the general consent 
 of my barons in council, retained in my own posses- 
 sion as my father held them. 
 
 11. To soldiers who hold their lands by knightly 
 service I give such lands as of my own gift, all arable 
 portions of the same to be free from all amercement 
 and other burdens, that as they are thus substantially 
 relieved they may keep themselves well furnished 
 both with horses and arms for ray service and the 
 defence of my kingdom. 
 
 12. I establish and henceforth undertake to 
 maintain a firm peace in all my kingdom. 
 
 13. I give back to you the law of King Edward, 
 with those emendations which my father with the 
 council of his barons made upon it. 
 
 14. If any one has taken aught from my property 
 or the property of another since the death of my 
 brother William, let it all be restored at once with- 
 
1135-1235] CONTEMPORARY EXPOSITION 
 
 out other amends ; and if any one hereafter shall 
 retain anything thus taken, he shall make heavy 
 restitution above what shall be found to have been 
 taken. 
 
 privileges of 
 the people. 
 
 Witnesses : — 
 
 Maurice bishop of London, 
 Gundolf bishop, 
 William bishop elect, 
 Henry earl, 
 Simon earl 
 Walter Giffard, 
 Robert de Montfort, 
 Roger Bigot, 
 Henry de Portous, 
 at London when I was crowned. 
 
 Note the few 
 witnesses 
 compared 
 with Magna 
 Cliarta. 
 This charter 
 was renewed 
 by Stephen 
 and Henry 
 II., and 
 served in 
 John's reign 
 as the text 
 upon which 
 the barons 
 founded 
 their claim 
 for restora- 
 tion of " an- 
 cient liber- 
 ties." 
 
 CONTEMPORARY EXPOSITION 
 
 WILLIAM OF MALMESBURT (1135) 
 
 . . . He (Henry) was elected king : though some trifling dis- 
 sensions had first arisen among the nobility, which were allayed 
 chiefly through the exertions of Henry, Earl of Warwick. . . . 
 
 He immediately promulgated an edict throughout England, 
 annulling the illegal ordinances of his brother, and of Ranulph ; 
 he remitted taxes ; released prisoners ; drove the flagitious 
 from court ; restored the nightly use of lights within the palace, 
 which had been omitted in his brother's time ; and renewed 
 the operation of the ancient laws, confirming them with his 
 own oath, and that of the nobility, that they might not be 
 eluded. 
 
 A joyful day then seemed to dawn on the people, when the 
 light of fair promise shone forth after such repeated clouds of 
 distress. 
 
 William op Malmesbury, Chronicles of the Kings of England. (Giles's 
 Translation) V. 125. 
 
6 HENRY I.'S CHARTER [Ch. I 
 
 ROGER OF WENDOVER (1235) 
 
 To induce them (the barons) to espouse his cause and make 
 him king, he promised them to revise and amend the iaws 
 by which England had been oppressed in the time of his 
 deceased brother. To this the clergy and people replied that, 
 if he would confirm to them by charter all the liberties and 
 customs which were observed in the reign of the holy King 
 Edward, they would accede to his wishes and make him their 
 king. This Henry readily engaged to do, and, confirming the 
 same by an oath, he was crowned king at Westminster, on 
 the day of the Annunciation of St. Mary, with the acclamations 
 of the clergy and people ; after which he caused these prin- 
 ciples to be reduced to writing, to the honour of the holy church 
 and the peace of his people. . . . 
 
 There were as many of these charters made as there are 
 counties in England, and by the king's orders they were placed 
 in the abbeys of each county for a memorial. 
 
 Roger of Wendoveb, Flowers of History. (Giles's Translation) I. 448. 
 
 CRITICAL COMMENT 
 
 HALLAM (1818) 
 
 Nor does the charter of Henry I., though so much celebrated, 
 contain anything specially expressed but a remission of unrea- 
 sonable reliefs, wardships, and other feudal burdens. It pro- 
 ceeds, however, to declare that he gives his subjects the laws 
 of Edward the Confessor, with the emendations made by his 
 father with consent of his barons. . . . 
 
 The people had begun to look back to a more ancient stand- 
 ard of law. The Norman conquest, and all that ensued upon 
 it, had endeared the memory of their Saxon government. Its 
 disorders were forgotten, or rather were less odious to a rude 
 nation, than the coercive justice by which they were afterward 
 restrained. Hence it became the favourite cry to demand the 
 laws of Edward the Confessor ; and the Normans themselves, 
 as they grew dissatisfied with the royal administration, fell into 
 
1818-1895] CRITICAL COMMENT " 
 
 these English sentiments. But what these laws were, or more 
 properly, perhaps, these customs, subsisting in the Confessor's 
 age, was not very distinctly understood. 
 
 So far, however, was clear, that the vigorous feudal servi- 
 tudes, the weighty tributes upon poorer freemen, had never 
 prevailed before the conquest. In claiming the laws of Edward 
 the Confessor, our ancestors meant but the redress of griev- 
 ances which tradition told them had not always existed. 
 
 Hei^kt Hallam, Europe During the Middle Ages. I. 349. 
 
 STUBBS (1873) 
 
 The understanding to govern well was made not only with 
 the archbishop as the first constitutional adviser of the crown, 
 but with the whole nation; it was embodied in a charter 
 addressed to all the faithful, and attested by the witan who 
 were present, the paucity of whose names may perhaps in- 
 dicate the small number of powerful men who had as yet ad- 
 hered to him. . . . The form of the charter forcibly declares 
 the ground which he was taking. . . . Perhaps the most sig- 
 nificant articles of the whole document are those by which he 
 provided that the benefit of the feudal concessions shall not be 
 engrossed by the tenants in chief : ' in like manner shall the 
 men of my barons reUeve their lands at the hand of their lords 
 by a just and lawful relief.' 
 
 William Stubbs, Constitutional History of England. I. 330. 
 
 J. R. GREEN (1874) 
 
 Henry's charter is important, not merely as the direct pre- 
 cedent for the Great Charter of John, but as the first limitation 
 which had been imposed on the despotism established by the 
 conquest. 
 
 J. R. Green, Short History of the English People. Chap. II., Sec. VI., p. 91.^ 
 
 POLLOCK AND MAITLAND (1895) 
 
 During the whole Norman period there was very little legis- 
 lation. ... It seems probable that Rufus set the example of 
 granting charters of liberties to the people at large. In 1093, 
 sick and in terror of death, he set his seal to some document 
 
8 HENRY I.'S CHARTER [Ch. I 
 
 that has not come down to us. Captives were to be released, 
 debts forgiven, good and holy laws maintained. . . . Henry at 
 his coronation, compelled to purchase adherents, granted a 
 charter full of valuable and fairly definite concessions. He 
 was going back to his father's ways. (William I.) . . . Above 
 all the laga Eachvardi as amended by William I. was to be 
 restored. 
 
 Pollock and Maitland, History of English Law. I. 73. 
 RANSOME (1895) 
 
 Henry's charter is a very important document, for it shows us 
 what were the chief grievances of which nobles and clergy com- 
 plained, and the way in which they might be remedied. 
 
 Cyril Ransome, Advanced History of England. 112. 
 GARDINER (1895) 
 
 The charter of Henry I., which had been produced at St. 
 Paul's the year before (1213), was again read, and all present 
 swore to force John to accept it as the rule of his own 
 government, . . - 
 
 Magna Charta, or the Great Charter, as the articles were 
 called after John confirmed them, was won by a combination 
 between all classes of freemen, and it gave I'ights to them all. 
 
 S. R. Gardiner, Student's History of England. 181. 
 
1215] MAGNA CHARTA — TEXT 
 
 Chapter II 
 MAGNA CHARTA (1215) 
 
 SUGGESTIONS 
 
 This Charter, signed by King John, June 15th, 1215, was the result of 
 the struggle between the king and the barons. Through the winter 
 of 1215, the barons had presented themselves in arms before the 
 king, and preferred their clainrs — a resumption of the old English 
 customs and common law, against which the king was openly de- 
 fiant. At Easter the barons again renewed their demands. London, 
 Exeter, Lincoln — one by one — city and county joined the barons 
 in defiance of the king. Unconditional submission followed the dis- 
 cussion of the document ; it was agreed upon and signed in a single 
 day. One copy of it still remains in the British Museum. 
 
 As Magna Charta forms the basis of all later English and American 
 written statements of free institutions, the document as a whole should 
 be read with care, although many of its articles have ceased to have a 
 direct relation with present history. Each article illuminates the legal 
 and constitutional status of the thirteenth century, and should be 
 examined with that point in mind. Articles 36, 39, and 40, the two 
 fundamental principles of all later constitutional government, should 
 be committed to memory, since they are many times referred to 
 throughout this volume. 
 
 For Outlines and Material, see Appendix A. 
 
 DOCUMENT 
 Magna Charta (1215) 
 
 The Great Charter of King John, granted June 15, 
 A. D. 1215. 
 
 John, by the Grace of God, King of England, The Statutes 
 Lord of Ireland, Duke of Normandy, Aquitaine, gljg trai^'- 
 and Count of Anjou, to his Archbishops, Bishops, literated 
 Abbots, Earls, Barons, Justiciaries, Foresters, ^^^^ ^' ^' 
 Sheriffs, Governors, Officers, and to all Bailiffs, and (1853). 
 
10 MAGNA CHART A [Ch. II 
 
 Ms faithful subjects, greeting. Know ye, that we, 
 in the presence of God, and for the salvation of our 
 soul, and the souls of all our ancestors and heirs, 
 and unto the honour of God and the advancement 
 of Holy Church, and amendment of our Realm, by 
 advice of our venerable Fathers, Stephen, Arch- 
 bishop of Canterbury, Primate of all England and 
 Cardinal of the Holy Roman Church ; Henry, Arch- 
 bishop of Dublin; William, of London; Peter, of 
 Winchester; Jocelin, of Bath and Glastonbury; 
 Hugh, of Lincoln ; Walter, of Worcester ; William, 
 of Coventry ; Benedict, of Rochester — Bishops : 
 of Master Pandulph, Sub-Deacon and Familiar of 
 our Lord the Pope ; Brother Aymeric, Master of the 
 Note the Knights-Templars in England ; and of the noble 
 Sease^o'f the P^^'^^^^' William Marescall, Earl of Pembroke; 
 baronage William, Earl of Salisbury ; William, Earl of 
 between 1101 'W'arren; William, Earl of Arundel; Alan de Gal- 
 loway, Constable of Scotland ; Warin FitzGerald, 
 Peter FitzHerbert, and Hubert de Burgh, Sen- 
 eschal of Poitou ; Hugh de Neville, Matthew Fitz- 
 Herbert, Thomas Basset, Alan Basset, Philip of 
 Albiney, Robert de Eoppell, John Mareschal, John 
 FitzHugh, and others, our liegemen, have, in the 
 first place, granted to God, and by this our pres- 
 ent Charter confirmed, for us and our heirs for 
 ever : 
 The Church: 1. That the Church of England shall be free, and 
 ?^,® ?®'^'^y have her whole rights, and her liberties inviolable ; 
 Art. I. ' ^iid we will have them so observed that it may 
 appear thence that the freedom of elections, which 
 is reckoned chief and indispensable to the English 
 Church, and which we granted and confirmed by our 
 Charter, and obtained the confirmation of the same 
 from our Lord the Pope Innocent TIL, before the 
 discord between us and our barons, was granted of 
 mere free will ; which Charter we shall observe, and 
 we do will it to be faithfully observed by our heirs 
 for ever. 
 
1215] TEXT 11 
 
 2. We also have granted to all the freemen of Reliefs: see 
 our kingdom, for us and for our heirs for ever, all charter Art. 
 the underwritten liberties, to be had and holden by II. 
 
 them and their heirs, of us and our heirs for ever : 
 If any of our earls, or barons, or others, who hold 
 of us in chief by military service, shall die, and at 
 the time of his death his heir shall be of full age, 
 and owe a relief, he shall have his inheritance by 
 the ancient relief — that is to say, the heir or heirs Earl's or 
 of an earl, for a whole earldom, by a hundred j.„j[gP %1Q)() 
 pounds ; the heir or heirs of a baron, for a whole Knight's 
 barony, by a hundred pounds; the heir or heirs of a ^^elief, £5. 
 knight, for a whole knight's fee, by a hundred shil- 
 lings at most; and whoever oweth less shall give 
 less, according to the ancient custom of fees. 
 
 3. But if the heir of any such shall be under age, "Wardship: 
 and shall be in ward, when he comes of age he shall |®^ ^^'^''7 
 have his inheritance without relief and without fine. Art. HI. 
 
 4. The keeper of the land of such an heir being 
 under age, shall take of the land of the heir, none 
 but reasonable issues, reasonable customs, and 
 reasonable services, and that without destruction 
 and waste of his men and his goods ; and if he 
 commit the custody of any such lands to the sheriff, 
 or any other who is answerable to us for the issues of 
 the land, and he shall make destruction and waste 
 of the lands which he hath in custody, we will take 
 of him amends, and the land shall be committed to 
 two lawful and discreet men of that fee, who shall 
 answer for the issues to us, or to him to whom we 
 shall assign them ; and if we sell or give to any one 
 the custody of any such lands, and he therein make 
 destruction or waste, he shall lose the same custody, 
 which shall be committed to two lawful and discreet 
 men of that fee, who shall in like manner answer to 
 us as aforesaid. 
 
 5. But the keeper, so long as he shall have the 
 custody of the land, shall keep up the houses, parks, 
 warrens, ponds, mills, and other things pertaining 
 
12 MAGNA CHARTA [Ch. II 
 
 to the land, out of the issues of the same land ; and 
 shall deliver to the heir, when he comes of full age, 
 his whole land, stocked with ploughs and carriages, 
 according as the time of wainage shall require, and 
 the issues of the land can reasonably bear. 
 
 6. Heirs shall be married without disparagement, 
 and so that before matrimony shall be contracted, 
 those who are near in blood to the heir shall have 
 notice. 
 
 7. A widow, after the death of her husband, shall 
 forthwith and without difficulty have her marriage 
 and inheritance ; nor shall she give anything for her 
 dower, or her marriage, or her inheritance, which 
 her husband and she held at the day of his death ; 
 and she may remain in the mansion house of her 
 husband forty days after his death, within which 
 time her dower shall be assigned. 
 
 See Henry 8. No widow shall be distrained to marry herself, 
 
 L's Charter, g^ j^^g ^^g g]^g j^g^g ^ mind to live without a husband ; 
 
 but yet she shall give security that she will not 
 
 marry without our assent, if she hold of us ; or 
 
 without the consent of the lord of whom she holds, 
 
 if she hold of another. 
 
 9. Neither we nor our bailiffs shall seize any 
 
 land or rent for any debt so long as the chattels 
 
 of the debtor are sufficient to pay the debt; nor 
 
 shall the sureties of the debtor be distrained so 
 
 long as the principal debtor has sufficient to pay 
 
 the debt; and if the principal debtor shall fail in 
 
 the payment of the debt, not having wherewithal 
 
 to pay it, then the sureties shall answer the debt ; 
 
 and if they will they shall have the lands and rents 
 
 of the debtor, until they shall be satisfied for the 
 
 debt which they paid for him, unless the principal 
 
 debtor can show himself acquitted thereof against 
 
 the said sureties. 
 
 The Jews 10. If any one have borrowed anything of the 
 
 were the Jews, more or less, and die before the debt be 
 
 king's bonds- ' 
 
 men: this is satisfied, there shall be no mterest paid for that 
 
1215] TEXT 13 
 
 debt, so loDg as the heir is under age, of whomso- the begin- 
 ever he may hold ; and if the debt falls into our leo-iliation 
 hands, we will only take the chattel mentioned in against Jews, 
 the deed. 
 
 11. And if any one shall die indebted to the 
 Jews, his wife shall have her dower and pay 
 nothing of that debt; and if the deceased left 
 children under age, they shall have necessaries 
 provided for them, according to the tenement of 
 the deceased; and out of the residue the debt shall 
 be paid, saving, however, the sei'vice due to the 
 lords, and in like manner shall it be done touching 
 debts due to others than the Jews. 
 
 12. No SCUTAGE OR AID SHALL BE IMPOSED IN 
 OUR KINGDOM, UNLESS BY THE GENERAL COUNCIL OF 
 
 OUR KINGDOM ; except for ransoming our person, 
 
 making our eldest son a knight, and once for 
 
 marrying our eldest daughter ; and for these there 
 
 shall be paid no more than a reasonable aid. In ^sTote the 
 
 like manner it shall be concerning the aids of the liberty given 
 ^., , -r T to London. 
 
 City ot London. 
 
 13. And the City of London shall have all its 
 ancient liberties and free customs, as well by land 
 as by water; furthermore, Ave will and grant that 
 all other cities and boroughs, and towns and ports, 
 shall have all theii' liberties and free customs. 
 
 14. And for holding the general council of The aids 
 
 THE KINGDOM CONCERNING THE ASSESSMENT OF AIDS, gi^^^n by citi- 
 zens at tins 
 EXCEPT IN THE THREE CASES AFORESAID, AND FOR time tO the 
 
 THE ASSESSING OF SCUTAGES, WE SHALL CAUSE TO Barons 
 
 gained them 
 
 BE SUMMONED THE ARCHBISHOPS, BISHOPS, ABBOTS, (i^jg clause 
 EARLS, AND GREATER BARONS OP THE REALM, SIN- and became 
 GLY BY OUR LETTERS. AnD FURTHERMORE, WE Parlfamen^- 
 SHALL CAUSE TO BE SUMMONED GENERALLY, BY OUR ary represen- 
 SHERIFFS AND BAILIFFS, ALL OTHERS WHO HOLD ^5:*^*^^ "\ 
 
 House of 
 
 OF us IN CHIEF, FOR A CERTAIN DAY, THAT IS TO CommonS. 
 SAY, FORTY DAYS BEFORE THEIR MEETING AT LEAST, 
 AND TO A CERTAIN PLACE; AND IN ALL LETTERS OF 
 SUCH SUMMONS WE WILL DECLARE THE CAUSE OP 
 
14 
 
 MAGNA CHART A 
 
 [Ch. II 
 
 IS'ote the 
 principle of 
 tlie govern- 
 ment: — 
 An heredi- 
 tary sov- 
 ereign, bound 
 to summon 
 and consult 
 a parliament 
 of the whole 
 realm. 
 
 Services. 
 
 The Ct. of 
 Com. Pleas 
 met at West- 
 minster from 
 this time on. 
 Novel dis- 
 seisin = dis- 
 possession. 
 Mort d'ances- 
 tor = death 
 of the ances- 
 tor; that is, 
 in cases of 
 disputed suc- 
 cession to 
 land. 
 
 Darrein Pre- 
 sentment = 
 last presen- 
 tation to a 
 benefice. 
 The word 
 Assize here 
 means " an 
 assembly of 
 knights or 
 other sub- 
 stantial per- 
 sons, held at 
 a certain 
 time and 
 place where 
 they sit with 
 the Justice. 
 ' Assisa ' or 
 ' Assize ' is 
 
 SUCH SUMMONS. AnD, SUMMONS BEING THUS MADE, 
 THE BUSINESS SHALL PROCEED ON THE DAY AP- 
 POINTED, ACCORDING TO THE ADVICE OF SUCH AS 
 SHALL BE PRESENT, ALTHOUGH ALL THAT WERE 
 SUMMONED COME NOT. 
 
 15. We will not for the future grant to any one 
 that he may take aid of his own free tenants, unless 
 to ransom his body, and to make his eldest son a 
 knight, and once to marry his eldest daugiiter ; and 
 for this there shall be only paid a reasonable aid. 
 
 16. No man shall be distrained to perform more 
 service for a knight's fee, or other free tenement, 
 than is due from thence. 
 
 17. Common pleas shall not follow our court, 
 but shall be holden in some place certain. 
 
 18. Trials upon the Writs of Novel Disseisin, 
 and of Mort d'ancestor, and of Darrein Present- 
 ment, shall not be taken but in their proper coun- 
 ties, and after this manner : We, or if we should 
 be out of the realm, our chief justiciary, will send 
 two justiciaries through every county four times 
 a year, who, with four knights of each county, 
 chosen by the county, shall hold the said assizes 
 in the county, on the day, and at the place ap- 
 pointed. 
 
 19. And if any matters cannot be determined 
 on the day appointed for holding the assizes in 
 each county, so many of the knights and free- 
 holders as have been at the assizes aforesaid shall 
 stay to decide them as is necessary, according as 
 there is more or less business. 
 
1215] TEXT 15 
 
 also taken 
 for the court, 
 
 20. A freeman shall not be amerced for a small at^^hich the" 
 
 offence, but only according to the degree of the writs of As- 
 
 offence ; and for a great crime according to the ?^^ ^^,t 
 
 heinousness of it, saving to him his contenement ; These as- 
 
 and after the same manner a merchant, saving to sizes, though 
 
 him his merchandise. And a villein shall be ^qyh not an- 
 
 amerced after the same manner, saving to him his nulled until 
 
 wainage, if he falls under our mercy ; and none see^enrv 
 
 of the aforesaid amerciaments shall be assessed I.'s Charter, 
 
 but by the oath of honest men in the neighbour- ^^*" V™- 
 , -, Contene- 
 
 hood. jjjent . 
 
 "That by 
 which a per- 
 son subsists 
 and which is 
 essential to 
 his rank in 
 life." 
 
 21. Earls and barons shall not be amerced Clauses 20- 
 
 but by their peers, and after the degree of the 21-22 were 
 a, " intended to 
 
 offence. prevent ty- 
 
 rannical 
 
 22. No ecclesiastical person shall be amerced extortions. 
 for his lay tenement, but according to the propor- 
 tion of the others aforesaid, and not according to 
 
 the value of his ecclesiastical benefice. 
 
 23. Neither a town nor any tenant shall be dis- Distrained — 
 trained to make bridges or embankments, unless compelled, 
 that anciently and of right they are bound to do it. 
 
 24. No sheriff, constable, coroner, or other our This article 
 
 bailiffs, shall hold " Pleas of the Crown." marks an era 
 
 m history oi 
 criminal law 
 by securing 
 trial of all 
 serious 
 crimes before 
 King's 
 Justices. 
 
 25. All counties, hundreds, wapentakes, and 
 trethings, shall stand at the old rents, without any 
 increase, except in our demesne manors. 
 
16 MAGNA CHART A [Ch. II 
 
 Usually one 26. If any one holding of us a lay fee die, and 
 
 third to the ^]^g stieriff, or our bailiffs, show our letters patent 
 wife and one „ . , , , . , , , i -,-\ 
 
 third to the of summons tor debt which the dead man did owe 
 
 heirs. See to us, it shall be lawful for the sheriff or our bail- 
 Charter Art. if^ to attach and register the chattels of the dead, 
 Vn. found upon his lay fee, to the amount of the debt, 
 
 by the view of lawful men, so as nothing be re- 
 moved until our whole clear debt be paid ; and the 
 rest shall be left to the executors to fulfil the testa- 
 ment of the dead ; and if there be nothing due from 
 him to us, all the chattels shall go to the use of 
 the dead, saving to his wife and children their 
 reasonable shares. 
 
 27. If any freeman shall die intestate, his chat- 
 tels shall be distributed by the hands of his nearest 
 relations and friends, by view of the Church, saving 
 to every one his debts which the deceased owed 
 to him. 
 
 28. No constable or bailiff of ours shall take 
 corn or other chattels of any man unless he pres- 
 ently give him money for it, or hath respite of pay- 
 ment by the good- will of the seller. 
 
 29. No constable shall distrain any knight to 
 give money for castle-guard, if he himself will do 
 it in his person, or by another able man, in case 
 he cannot do it through any reasonable cause. 
 And if we have carried or sent him into the army, 
 he shall be free from such guard for the time he 
 shall be in the army by our command. 
 
 30. No sheriff or bailiff of ours, or any other, 
 shall take horses or carts of any freeman for car- 
 riage, without the assent of the said freeman. 
 
 31. Neither shall we nor our bailiffs take any 
 man's timber for our castles or other uses, unless 
 by the consent of the owner of the timber. 
 
 Confiscation 32. We will retain the lands of those convicted 
 of the ^'^"^as ^^ felony only one year and a day, and then they 
 
 not wholly shall be delivered to the lord of the fee. 
 
 abrogated 
 untillSIO. 
 
1215] TEXT 17 
 
 33. All ky dells (wears) for the time to come To prevent 
 shall be put down in the rivers of Thames and Private 
 Medway, and throughout all England, except upon tio^ ^ gg^^ 
 
 the sea-coast. in public 
 
 waters. 
 The purport 
 of this was to 
 prevent en- 
 closures of 
 common fish- 
 ing rights. 
 These wears 
 are now 
 called 
 
 "kettles " or 
 "kettle- 
 nets" in 
 Kent and 
 Cornwall. 
 
 34. The writ which is called prcBcipe, for the fu- Protection of 
 
 ture, shall not be made out to any one, of any tene- ?.^^: juris- 
 
 ' J ' J diction of 
 
 ment, whereby a freeman may lose his court. Court baron. 
 
 35. There shall be one measure of wine and one 
 of ale through our whole realm ; and one measure 
 of corn, that is to say, the London quarter; and 
 one breadth of dyed cloth, and russets, and haber- 
 jeets, that is to say, two ells within the lists ; and 
 it shall be of weights as it is of measures. 
 
 36. NOTHINa FROM HENCEFORTH SHALL BE GIVEN The basis of 
 OR TAKEN FOR A WRIT OF INQUISITION OF LIFE OR pej^o^al ^ 
 LIMB, BUT IT SHALL BE GRANTED FREELY, AND NOT Liberty and 
 DENIED. forerunner Of 
 
 Habeas Cor- 
 pus, 1679. 
 
 37. If any do hold of us by fee-farm, or by 
 
 socage, or by bui-gage, and he hold also lauds of Socage = 
 
 any other by knight's service, we will not have the J^nds held 
 
 Dv LPnurG or 
 custody of the heir or land, which is holden of inferior 
 
 another man's fee by reason of that fee-farm, office in hus- 
 
 socage, or burgage ; neither will we have the cus- „^'^ ^^' 
 
 ronnRl 
 
 tody of the fee-farm, or socage, or burgage, unless delivery of 
 knight's service was due to us out of the same fee- some small 
 farm. We will not have the custody of an heir, nor toliu'^ofThe 
 of any land which he holds of another by knight's king's own- 
 service, by reason of any petty serjeanty by which ^^'^^iP of 
 
18 
 
 MAGNA CHART A 
 
 [Ch. II 
 
 Law — i. e. 
 his oatli. 
 
 See the Seal 
 of the Su- 
 preme Court 
 of Massachu- 
 setts. 
 This vital 
 principle of 
 personal 
 liberty ante- 
 dates Magna 
 Charta, and 
 was defined 
 more clearly 
 in "Habeas 
 Corpus," and 
 Trial by Jury. 
 Called by 
 Creasy the 
 " crowning 
 glories " of 
 the Great 
 Charter. 
 
 The trading 
 class begins 
 to show 
 power at this 
 time. 
 
 See Article 
 41. 
 
 The return 
 of an estate 
 to a lord, 
 either on 
 failure of 
 
 he holds of us, by the service of paying a knife, an 
 arrow, or the like. 
 
 38. No bailiff from henceforth shall put any man 
 to his law upon his own bare saying, without credi- 
 ble witnesses to prove it. 
 
 39. No FREEMAN SHALL BE TAKEN OR IMPRISONED, 
 OR DISSEISED, OR OUTLAVTED, OR BANISHED, OR ANY 
 WAYS DESTROYED, NOR WILL WE PASS UPON HIM, ' 
 NOR WILL WE SEND UPON HIM, UNLESS BY THE LAW- 
 FUL JUDGMENT OF HIS PEERS, OR BY THE LAW OP 
 THE LAND. 
 
 40. We will sell to no man, we will not 
 deny to any man, either justice or right. 
 
 41. All merchants shall have safe and secure 
 conduct, to go out of, and to come into England, and 
 to stay there and to pass as well by land as by 
 water, for buying and selling by the ancient and 
 allowed customs, without any unjust tolls; except 
 in time of war, or when they are of any nation at 
 war with us. And if there be found any such in our 
 land, in the beginning of the war, they shall be at- 
 tached, without damage to their bodies or goods, 
 until it be known unto us, or our chief justiciary, 
 how our merchants be treated in the nation at war 
 with us ; and if ours be safe there, the others shall 
 be safe in our dominions. 
 
 42. It shall be lawful, for the time to come, for 
 any one to go out of our kingdom, and return safely 
 and securely by land or by water, saving his alle- 
 giance to us ; unless in time of war, by some short 
 space, for the common benefit of the realm, except 
 prisoners and outlaws, according to the law of the 
 land, and people in war with us, and merchants who 
 shall be treated as is above mentioned. 
 
 43. If any man hold of any escheat as of the 
 honour of Wallingford, Nottinghain, Boulogne, Lan- 
 caster, or of other escheats which be in our hands, 
 and are baronies, and die, his heir shall give no 
 other relief, and perform no other service to us than 
 
1215] TEXT 19 
 
 he would to the baron, if it were in the baron's tenant's 
 hand ; and we will hold it after the same manner as hfs^commit- 
 the baron held it. ting felony. 
 
 44. Those men who dwell without the forest from Before 
 
 henceforth shall not come before our justiciaries of 5f,^^!J^ 
 
 the forest, upon common summons, but such as are tendance at 
 
 impleaded, or as sureties for any that are attached ^^^ Forest 
 r. ^, . • 4.1 ^ J. Court was 
 
 for something concerning the lorest. compulsory. 
 
 45. We will not make any justices, constables, 
 sheriffs, or bailiffs, but of such as know the law of 
 the realm and mean duly to observe it. 
 
 46. All barons who have founded abbeys, which 
 they hold by charter from the kings of England, or 
 by ancient tenure, shall have the keeping of them, 
 when vacant, as they ought to have. 
 
 47. All forests that have been made forests in 
 our time shall forthwith be disforested ; and the same 
 shall be done with the water-banks that have been 
 fenced in by us in our time. 
 
 48. All evil customs concerning forests, warrens, 
 foresters, and warreners, sheriffs and their officers, 
 water-banks and their keepers, shall forthwith be in- 
 quired into in each county, by twelve sworn knights 
 of the same county chosen by creditable persons 
 of the same county ; and within forty days after 
 the said inquest be utterly abolished, so as never to 
 be restored: so as we are first acquainted there- 
 with, or our justiciary, if we should not be in 
 England. 
 
 49. We will immediately give up all hostages and 
 charters delivered unto us by oui- English subjects, 
 as securities for their keeping the peace, and yield- 
 ing us faithful service. 
 
 50. We will entirely remove from their bailiwicks 
 the relations of Gerard de Atheyes, so that for the 
 future they shall have no bailiwick in England ; we 
 will also remove Engelard de Cygony, Andrew, 
 Peter, and Gyon, from the Chancery ; Gyon de 
 Cygony, Geoffrey de Martyn, and his brothers; 
 
20 MAGNA CHART A [Ch. II 
 
 Philip Mark, and his brothers, and his nephew, 
 Geoffrey, and their whole retinue. 
 
 51. As soon as peace is restored, we will send 
 out of the kingdom all foreign knights, cross-bow- 
 men, and stipendiaries, who are come with horses 
 and arms to the molestation of our people. 
 
 52. If any one has been dispossessed or de- 
 prived by us, without the lawful judgment of his 
 peers, of his lands, castles, liberties, or right, we will 
 forthwith restore them to him ; and if any dispute 
 arise upon this head, let the matter be decided by 
 the five-and-twenty barons hereafter mentioned, for 
 the preservation of the peace. And for all those 
 things of which any person has, without the lawful 
 judgment of his peers, been dispossessed or deprived, 
 either by our father King Henry, or our brother King 
 Richard, and which we have in our hands, or are 
 possessed by others, and we are bound to warrant 
 and make good, we shall have a respite till the term 
 usuall}^ allowed the crusaders ; excepting those things 
 about which there is a {)lea depending, or whereof an 
 inquest hath been made, by our order before we un- 
 dertook the crusade ; but as soon as we return from 
 our expedition, or if perchance we tarry at home 
 and do not make our expedition, we will immedi- 
 ately cause full justice to be administered therein. 
 
 53. The same respite we shall have, and in the 
 same manner, about administering justice, dis- 
 afforesting or letting continue the forests, which 
 Henry our father, and our brother Richard, have 
 afforested ; and the same concerning the wardship 
 of the lands which are in another's fee, but the 
 wardship of which we have hitherto had, by reason 
 of a fee held of us by knight's service ; and for the 
 abbeys founded in other fee than our own, in which 
 the lord of the fee says he has a right ; and when we 
 return from our expedition, or if we tarry at home, 
 and do not make our expedition, we will immediately 
 do full justice to all the complainants in this behalf. 
 
1215] TEXT 21 
 
 54. No man shall be taken or imprisoned upon 
 the appeal of a woman, for the death of any other 
 than her husband. 
 
 55. All unjust and illegal fines made by us, and 
 all amerciaments imposed unjustly and contrary to 
 the law of the land, shall be entirely given up, or 
 else be left to the decision of the five-and-twenty 
 barons hereafter mentioned for the preservation of 
 the peace, or of the major part of them, together 
 with the aforesaid Stephen, Archbishop of Canter- 
 bury, if he can be present, and others whom he 
 shall think fit to invite ; and if he cannot be present, 
 the business shall notwithstanding go on without 
 him; but so that if one or more of the aforesaid 
 five-and-twenty barons be plaintiffs in the same 
 cause, they shall be set aside as to what concerns 
 this particular affair, and others be chosen in their 
 room, out of the said five-and-twenty, and sworn 
 by the rest to decide the matter. 
 
 56. If we have disseised or dispossessed the 
 Welsh of any lands, liberties, or other things, with- 
 out the legal judgment of their peers, either in Eng- 
 land or in Wales, they shall be immediately restored 
 to them ; and if any dispute arise upon this head, 
 the matter shall be determined in the Marches by 
 the judgment of their peers ; for tenements in Eng- 
 land according to the law of England, for tenements 
 in Wales according to the law of Wales, for tene- 
 ments of the Marches according to the law of the 
 Marches : the same shall the Welsh do to us and our 
 subjects. 
 
 57. As for all those things of which a Welshman 
 hath, without the lawful judgment of his peers, 
 been disseised or deprived of by King Henry our 
 father, or our brother King Richard, and which we 
 either have in our hands or others are possessed of, 
 and we are obliged to warrant it, we shall have a 
 respite till the time generally allowed the crusaders; 
 excepting those things about which a suit is de- 
 
22 MAGNA CHARTA [Ch. II 
 
 pending, or whereof an inquest has been made by 
 our order, before we undertook the crusade : but 
 when we return, or if we stay at home without per- 
 forming our expedition, we will immediately do 
 them full justice, according to the laws of the Welsh 
 and of the parts before mentioned- 
 
 58. We will without delay dismiss the son of 
 Llewellin, and all the Welsh hostages, and release 
 them from the engagements they have entered into 
 with us for the preservation of the peace. 
 
 59. We will treat with Alexander, King of Scots, 
 concerning the restoring his sisters and hostages, 
 and his right and liberties, in the same form and 
 manner as we shall do to the rest of our barons of 
 England; unless by the charters which we have 
 from his father, William, late King of Scots, it 
 ought to be otherwise ; and this shall be left to the 
 determination of his peers in our court. 
 
 There was a 60. All the aforesaid customs and liberties, which 
 
 close union ^q ]^tx\e granted to be holden in our kingdom, as 
 between bar- , •? i i . n i i? ^•^ 
 
 onao-e and much as it belongs to us, all people or our kingdom, 
 
 citizens from as well clero-y as laity, shall observe, as far as they 
 
 1213 to 1217. ^i . V ^i • 1 1 + 
 
 are concerned, towards their dependents. 
 
 61. And whereas, for the honour of God and 
 the amendment of our kingdom, and for the better 
 quieting the discord that has arisen between us and 
 our barons, we have granted all these things afore- 
 said ; willing to render them firm and lasting, we 
 do give and grant our subjects the underwritten 
 security, namely, that the barons may choose five- 
 and-twenty barons of the kingdom, whom they think 
 The imme- convenient ; who shall take care, with all their 
 diate abuses might, to hold and observe, and cause to be ob- 
 
 W6r6 G3<SllV 
 
 swept away, served, the peace and liberties we have granted 
 the hostages them, and by this our present Charter confirmed in 
 their homes ^^^^ manner ; that is to say, that if we, our justici- 
 the foreign- ary, our bailiffs, or any of our officers, shall in any 
 ers banished circumstance have failed in the performance of them 
 country. But towards any person, or shall have broken through 
 
1215] TEXT 23 
 
 any of these articles of peace and security, and the it was less 
 offence be notified to four barons chosen out of the ^ije means' 
 five-and-twenty before mentioned, the said four for the con- 
 barons shall repair to us, or our iusticiary, if we *^?^ ^* * 'King 
 
 ^ ' . , . whom no 
 
 are out of the realm, and, laying open the grievance, man could 
 
 shall petition to have it redressed without delay : and trust. 
 
 • GrrGGii s iSJiort 
 
 if it be not redressed by us, or if we should chance History 129. 
 
 to be out of the realm, if it should not be redressed 
 by our justiciary within forty days, reckoning from 
 the time it has been notified to us, or to our jus- 
 ticiary (if we should be out of the realm), the four 
 barons aforesaid shall lay the cause before the rest 
 of the five-and-twenty barons ; and the said five- 
 and-twenty barons, together with the community of 
 the whole kingdom, shall distrain and distress us in 
 all the waj^s in which they shall be able, by seizing 
 our castles, lands, possessions, and in any other 
 manner they can, till the grievance is redressed, 
 according to their pleasure ; saving harmless our 
 own person, and the persons of our Queen and chil- 
 dren ; and when it is redressed, they shall behave 
 to us as before. And any person whatsoever in the 
 kingdom may swear that he will obey the orders of 
 the five-and-twenty barons aforesaid in the execu- 
 tion of the premises, and will distress us, jointly 
 with them, to the utmost of his power ; and we give 
 public and free liberty to any one that shall please 
 to swear to this, and never will hinder any person 
 from taking the same oath. 
 
 62. As for all those of our subjects who will not, 
 of their own accord, swear to join the five-and- 
 twenty barons in distraining and distressing us, we 
 will issue orders to make them take the same oath 
 as aforesaid. And if anyone of the five-and-twenty 
 barons dies, or goes out of the kingdom, or is hin- 
 dered any other way from carrying the things afore- 
 said into execution, the rest of the said five-and- 
 twenty barons may choose another in his room, at their 
 discretion, who shall be sworn in like manner as the 
 
24 MAGNA CHART A [Ch. II 
 
 rest. In all things that are committed to the execu- 
 tion of these five-ancl-twenty barons, if, when they 
 are all assembled together, they should happen to 
 disagree about any matter, and some of them, when 
 summoned, will not or cannot come, whatever is 
 agreed upon, or enjoined, by the major part of 
 those that are present shall be reputed as firm and 
 valid as if all the five-and-twenty had given their 
 consent; and the aforesaid five-and-twenty shall 
 swear that all the premises they shall faithfully ob- 
 serve, and cause with all their power to be observed. 
 And we will procure nothing from any one, by our- 
 selves nor by another, whereby any of these con- 
 cessions and liberties may be revoked or lessened ; 
 and if any such thing shall have been obtained, let 
 it be null and void ; neither will we ever make use 
 of it either by ourselves or any other. And all the 
 ill-will, indignations, and rancours that have arisen 
 between us and our subjects, of the clergy and laity, 
 from the first breaking out of the dissensions be- 
 tween us, we do fully remit and forgive : moreover, 
 all trespasses occasioned by the said dissensions, 
 from Easter in the sixteenth year of our reign till 
 the restoration of peace and tranquillity, we hereby 
 entirely remit to all, both clergy and laity, and as 
 far as in us lies do fully forgive. We have, more- 
 over, caused to be made for them the letters patent 
 testimonial of Stephen, Lord Archbishop of Canter- 
 bury, Henry, Lord Archbishop of Dublin, and the 
 bishops aforesaid, as also of Master Pandulph, for 
 the security and concessions aforesaid. 
 
 63. Wherefore we will and firmly enjoin, that the 
 Church of England be free, and that all men in our 
 kingdom have and hold all the aforesaid liberties, 
 rights, and concessions, truly and peaceably, freely 
 and quietly, fully and wholly to themselves and their 
 heirs, of us and our heirs, in all things and places, 
 for ever, as is aforesaid. It is also sworn, as well 
 on our part as on the part of the barons, that all 
 
1235] CONTEMPORARY EXPOSITION 25 
 
 the things aforesaid shall be observed in good faith, 
 and without evil subtilty. Given under our hand, 
 in the presence of the witnesses above named, and 
 many others, in the meadow called Runingmede, be- 
 tween Windsor and Staines, the 15th day of June, 
 in the 17th year of our reign. 
 
 CONTEMPORARY EXPOSITION 
 
 ROGER OF WENDOVER (1235) 
 
 A. D. 1215, which was the seventeenth year of the reign 
 of King John ; he held his court at Winchester at Christmas 
 for one day, after which he hurried to London, and took up 
 his abode at the New Temple, and at that place the above- 
 mentioned nobles came to him in gay military array, and 
 demanded the confirmation of the liberties and laws of King 
 Edward (the Confessor), with other liberties granted to them 
 and to the kingdom and church of England, as were contained 
 in the charter, and above mentioned laws of Henry the First ; 
 they also asserted that, at the time of his absolution at Win- 
 chester, he had promised to restore those laws and ancient 
 liberties, and was bound by his own oath to observe them. The 
 king, hearing the bold tone of the barons in making this 
 demand, much feared an attack from them, as he saw that 
 they were prepared to battle ; he, however, made answer that 
 their demands were a matter of importance and difficulty, and 
 he therefore asked a truce till the end of Easter, that he might, 
 after due deliberation, be able to satisfy them as well as the 
 dignity of his crown. . . . 
 
 The barons then delivered to the messengers a paper, con- 
 taining in great measure the laws and ancient customs of the 
 kingdom, and declared that, unless the king immediately granted 
 them and confirmed them under his own seal, they would, by 
 taking possession of his fortresses, force him to give them 
 sufficient satisfaction as to their before-named demands. The 
 archbishop with his fellow-messengers then carried the paper 
 to the king, and read to him the heads of the paper one by one 
 throughout. The king, when he heard the purport of these 
 heads, derisively said, with the greatest indignation, "Why, 
 
26 MAGNA CHATiTA [Ch. H 
 
 amongst these unjust demands, did not the barons ask for my 
 kingdom also ? Their demands are vain and visionary, and 
 are unsupported by any plea of reason whatever." And at 
 length he angrily declared with an oath, that he would never 
 grant them such liberties as would render him their slave. 
 The principal of these laws and liberties, which the nobles 
 required to be confirmed to them, are partly described above 
 in the charter of King Henry, and partly are extracted from 
 the old laws of King Edward, as the following history will 
 show in due time. . . . 
 
 King John, when he saw that he was deserted by almost all, 
 so that out of his regal superabundance of followers he scarcely 
 retained seven knights, was much alarmed lest the barons 
 would attack his castles and reduce them without difficulty, as 
 they would find no obstacle to their doing so ; and he deceit- 
 fully pi^ tended to make peace for a time with the aforesaid 
 barons, and sent William Marshal, earl of Pembroke, with 
 other trustworthy messengers, to them, and told them that, 
 for the sake of peace, and for the exaltation and honour of the 
 kingdom, he would willingly grant them the laws and liberties 
 they required ; he also sent word to the barons by these same 
 messengers, to appoint a fitting day and place to meet and 
 carry all these matters into effect. The king's messengers 
 then came in all haste to London, and without deceit reported 
 to the barons all that had been deceitfully imposed on them ; 
 they in their great joy appointed the 15th of June for the king to 
 meet them, at a field lying between Staines and Windsor. 
 Accordingly, at the time and place pre-agreed on, the king aij^d 
 nobles came to the appointed conference, and when each party 
 had stationed themselves apart from the other, they began a long 
 discussion about terms of peace and the aforesaid liberties. . . . 
 
 At length, after various points on both sides had been dis- 
 cussed, King John, seeing that he was inferior in strength to 
 the barons, without raising any difficulty, granted the under- 
 written laws and liberties, and confirmed them by his charter 
 as follows. 
 
 KoGEB Wendovee, Flowers of History (Giles's translation, 1849). II. 304. 
 
1628-1832] CRITICAL COMMENT 27 
 
 CRITICAL COMMENT 
 
 COKE (1628). 
 
 This parliamentary charter hath divers appellations in law. 
 It is calied Magna Charta, not for the length or largeness of 
 it .... but it is called the Great Charter, in respect of 
 the great weightiness and weighty greatness of the matter 
 contained in it in few words, being the fountain of all funda- 
 mental law ; and therefore it may truly be said of it, that it is 
 magnum in parvo. 
 
 Sir Edwakd Coke, First Institute of the Laws of England. I. 22. 
 BURKE (1774) 
 
 Magna Charta, if it did not give us originally the House of 
 Commons, gave us at least a^^House of Commons of weight and 
 consequence. 
 
 Edmi^nd Bueke, Works. II. 53. 
 
 HALLAM (1S18) 
 
 As this was the first effort towards a legal government, so 
 is it bej'ond comparison the most important event in our 
 history, except that revolution without which its benefits would 
 rapidly have been annihilated. ... It (the Great Charter) is 
 still the keystone of English liberty. All that has since been 
 obtained is little more than as confirmation or commentary. . . . 
 The essential clauses of Magna Charta are those which protect 
 the personal liberty and property of all freemen l^y giving 
 security from arbitrary imprisonment and arbitrary spolia- 
 tion. . . . From this era a new soul was infused into the 
 people of England. Her liberties at the best long in abeyance, 
 became a tangible possession, and those indefinite aspirations 
 for the laws of Edward the Confessor, were changed into a 
 stead}' regard for the Great Charter. 
 
 Henky Hallam, Europe during the Middle Ages. Chap. VIII. 341-342. 
 PALGRAVE (1832) 
 
 By far the greatest portions of the written or statute laws of 
 England consist of the declaration, the reassertion, repetition, 
 
28 MAGNA CHART A [Ch. n 
 
 or the re-enactment of some older law or laws, either customary 
 or written, with addition or modifications. The new building 
 has been raised upon the old ground- work : the institutions of 
 one age have always been modelled and formed from those of 
 the preceding, and their lineal descent has never been inter- 
 rupted or disturbed. 
 
 SiK James Palgkavb, English Commonwealth. I. 6. 
 
 MACKINTOSH (1832) 
 
 Whoever in any future age or yet unborn nation may ad- 
 mire the felicity of the expedient which converted the power 
 of taxation into the shield of liberty, by which discretionary 
 and secret imprisonment was rendered impracticable, and por- 
 tions of the people were trained to exercise a larger share of 
 judicial power than ever was allotted to them in any other 
 civilized State, in such a manner as to secure, instead of en- 
 dangering, public tranquillity ; whoever exults at the spectacle 
 of enlightened and independent assemblies, which, under the 
 eye of a well informed nation, discuss and determine the laws 
 and policy likely to make communities great and happy ; who- 
 ever is capable of comprehending all the effects of such in- 
 stitutions with all their possible improvements upon the mind 
 and genius of a people, — is sacredly bound to speak with 
 reverential gratitude of the authors of the Great Charter. To 
 have produced it, to have preserved it, to have matured it, 
 constitute the immortal claim of England upon the esteem of 
 mankind. Her Bacons and Shakespeares, her Miltons and 
 Newtons, with all the truth which they have revealed, and all 
 the generous virtue which they have inspired, are of inferior 
 value when compared with the subjection of men and their 
 rulers to the principles of justice, if, indeed, it be not more 
 true that these mighty spirits could not have been formed ex- 
 cept under equal laws, nor roused to full activity without the 
 influence of that spirit which the Great Charter breathed over 
 their forefathers. 
 
 Sir James Mackintosh, History of England. I. 221. 
 
1628-1895] CRITICAL COMMENT 29 
 
 STUBBS (1873) 
 
 The Great Charter closes one epoch and begins another. 
 On the one hand it is the united act of a nation that has been 
 learning union; the enunciation of rights and liberties, the 
 needs and uses of which have been taught by long years of 
 training and by a short but bitter struggle : on the other hand 
 it is the watchword of a new political party, the starting-point 
 of a new contest. 
 
 William Stubbs, Constitutional History of England. II. 1. 
 
 J. R. GREEN (1874) 
 
 An island in the Thames between Staines and Windsor had 
 been chosen as the place of conference : the King encamped on 
 one bank, while the barons covered the marshy flat, still known 
 by the name of Runnymede, on the other. Their delegates met 
 in the island between them, but the negotiations were a mere 
 cloak to cover John's purpose of unconditional submission. 
 The Great Charter was discussed, agreed to, and signed in a 
 single day. One copy of it still remains in the British Museum, 
 injured by age and fire, but with the royal seal still hanging 
 from the brown, shrivelled parchment. It is impossible to gaze 
 without reverence on the earliest monument of English freedom 
 which we can see with our own eyes and touch with our own 
 hands, the great Charter to which from age to age patriots have 
 looked back as the basis of English liberty. But in itself the 
 Charter was no novelty, nor did it claim to establish any new 
 constitutional principles. The Charter of Henry the First 
 formed the basis of the whole, and the additions to it are for 
 the most part formal recognitions of the judicial and adminis- 
 trative changes introduced by Henry the Second. But the 
 vague expressions of the older charters were now exchanged 
 for precise and elaborate provisions. The bonds of unwritten 
 custom which the older grants did little more than recognize 
 had proved too weak to hold the Angevins ; and the baronage 
 now threw them aside for the restraints of written law. It is 
 in this way that the Great Charter marks the transition from 
 the age of traditional rights, preserved in the nation's memory 
 and officially declared by the Primate, to the age of written 
 
30 MAGNA CHART A [Ch. II 
 
 legislation, of Parliaments and Statutes, which was soon to 
 come. The Church had shown its power of self-defence in the 
 struggle over the interdict, and the clause which recognized its 
 rights alone retained the older and general form. But all 
 vagueness ceases when the Charter passes on to deal with the 
 rights of Englishmen at large, their right to justice, to security 
 of person and property, to good government. " No freeman," 
 ran the memorable article that lies at the base of our whole 
 judicial system, " shall be seized or imprisoned, or dispossessed, 
 or outlawed, or in any way brought to ruin : we will not go 
 against any man nor send against him, save by legal judgment 
 of his peers or by the law of the land." "To no man will we 
 sell," runs another, " or deny, or delay, right or justice." The 
 great reforms of the past reigns were now formally recognized ; 
 judges of assize were to hold their circuits four times in the 
 year, and the King's Court was no longer to follow the 
 King in his wanderings over the realm, but to sit in a fixed 
 place. But the denial of justice under John was a small danger 
 compared with the lawless exactions both of himself and his 
 predecessor. Richard had increased the amount of the scutage 
 which Henry II. had introduced, and applied it to raise funds 
 for his ransom. He had restored the Danegeld, or land tax, so 
 often abolished, under the new name of " carucage," had seized 
 the wool of the Cistercians and the plate of the churches, and 
 rated moveables as well as land. John had again raised the 
 rate of scutage, and imposed aids, fines, and ransoms at his 
 pleasure without counsel of the baronage. The Great Charter 
 met this abuse by the provision on which our constitutional 
 system rests. With the exception of the three customary 
 feudal aids which still remained to the Crown, " no scutage or 
 aid shall be imposed in our realm save by the Common Council 
 of the realm ; " and to this Great Council it was provided that 
 prelates and the greater barons should be summoned by special 
 writ, and all tenants in chief through the sheriffs and bailiffs, 
 at least forty days before. . . . But it was less easy to provide 
 means for the control of a King whom no man could trust, and 
 a council of twenty-five barons was chosen from the general 
 body of their order to enforce on John the observance of the 
 Charter, with the right of declaring war on the King should its 
 
1628-1895] CRITICAL COMMENT 31 
 
 provisions be infringed. Finally, the Charter was published 
 throughout the whole country, and sworn to at every hundred- 
 mote and town=mote by order from the King. 
 
 J. E. Gkeen, Short History of the English People. 128-130. 
 
 BAGEHOT (1872) 
 
 Many most important enactments of that period (and the 
 fact is most characteristic) are declaratory acts. They do not 
 profess to enjoin by inherent authority what the law shall in 
 future be, but to state and mark what the law is ; they are 
 declarations of immemorial custom, not precepts of new duties. 
 Even in the "Great Charter" the notion of new enactments was 
 secondary, it was a great mixture of old and new ; it was a 
 sort of compact defining what was doubtful in floating custom. 
 Walter Bagehot, English Constitution. 280. 
 
 TASWELL-LANGMEAD (1879) 
 
 Three great political documents, in the nature of funda- 
 mental compacts between the Crown and the Nation, stand out 
 as prominent landmarks in English Constitutional history. 
 Magna Charta, the Petition of Right, and the Bill of Rights 
 constitute, in the words of Lord Chatham, " the Bible of the 
 English Constitution." In each of these documents whether it 
 be of the 13th or of the 17th century is observable the common 
 characteristic of professing to introduce nothing new. Each 
 professed to assert rights and liberties which were already old, 
 and sought to redress grievances which were for the most part 
 themselves innovations upon the ancient liberties of the people. 
 In its practical combination of conservative instincts with 
 liberal aspirations, in its power of progressive development and 
 self-adaptation to the changing political and social wants of each 
 successive generation, have always lain the peculiar excel- 
 lence and at the same time the surest safeguard, of our 
 Constitution. 
 
 The Great Charter of Liberties was the outcome of a move- 
 ment of all the freemen of the realm, led by their natural leaders, 
 the barons. Far from being a ' mere piece of class legislation,' 
 extorted by the barons alone for their own special interests, it 
 
32 MAGNA CHART A [Ch. II 
 
 is in itself a noble and remarkable proof of the sympathy and 
 union then existing between the aristocracy and all classes of 
 the commonalty. 
 
 J. P. Taswell-Langmead, English Constitutional History. 85. 
 
 RUDOLF VON GNEIST (1889) 
 
 This charter of liberties differed from those prevalent on the 
 continent, especially in the fact that the Prelates and vassals 
 do not think of themselves alone, but also extend the necessary 
 securities to the classes below them. . . . Magna Charta was 
 a pledge of reconciliation between all classes. Its existence 
 and ratification maintained, for centuries, the notion of funda- 
 mental rights as applicable to all classes, in the consciousness 
 that no liberties could be upheld by the superior classes for any 
 length of time, without guarantees of personal liberty for the 
 humbler also. 
 
 Rudolf von Gjsteist, History of the English Parliament, translated by 
 A. H. Keane. 29-103. 
 
 POLLOCK AND MAITLAND (1895) 
 
 Every one of its brief sentences is aimed at some different 
 object and is fuU of future law. 
 
 Pollock and Maitland, History of English Law. I. 150. 
 GARDINER (1895) 
 
 It was a good security if it could be maintained. ... So 
 little was John trusted that it was thought necessary ... to 
 establish a body of twenty-five, — twenty-four barons and the 
 Mayor of London, — which was to guard against any attempt 
 of the king to break his word. ... In other words, there was 
 to be a permanent organization for making war upon the king. 
 
 Gardiner, Student's History of England. 183. 
 RANSOME (1895) 
 
 One of the best features of the charter was the way in which 
 every right granted to a baron was carefully extended to include 
 the case of the simple freeman. . . . These provisions and many 
 
1628-1895] CRITICAL COMMENT 33 
 
 others which concerned every class of the population form the 
 substance of the Great Charter, which has ever since been 
 regarded by Englishmen as the foundation of their liberties. 
 In later times it took the position in popular esteem which had 
 hitherto been held by the " laws of Henry I.," or the " laws of 
 King Edward," and has been confirmed over and over again. 
 
 Cyril Ransome, Advanced History of England. 176-177. 
 
34 THE SUMMONS TO PARLIAMENT [Ch. Ill 
 
 Chapter III 
 THE SUMMONS TO PARLIAMENT (1295) 
 
 SUGGESTIONS 
 
 The importance of the " Summons " is chiefly prospective. It takes 
 a place among documents more famous because it is typical of a large 
 class of constitutional services. 
 
 This summons, together with similar writs, was issued by order of 
 the Crown. The king had found himself early in 1295 in very diffi- 
 cult circumstances. In June he issued writs of summons to the mem- 
 bers of Parliament to meet at Westminster in August ; this meeting 
 lasted but two days, and as no representative of the Commons was 
 summoned to this assembly, it is more properly styled a session of a 
 Great Council. No attempt was made in it to raise money, but it 
 was probably arranged that a grant should be asked for in the next 
 session. With this in view, writs were issued on the 30th of Septem- 
 ber to the Ecclesiastical representatives. On the 1st of October, the 
 writs were issued to the baronage. On the 3rd of October the writs 
 to the sheriffs are dated ; and by these each sheriff is directed to 
 return two knights elected by the counties, and two citizens or 
 burghers for each city or borough within his shire. 
 
 By such writs of summons a perfect representation of the three 
 estates was secured, and a parliament constituted, on the model of 
 which every succeeding assembly bearing that name was formed. 
 
 One may well pause at this point to look back upon the Witenage- 
 mot of the Teutonic system of government and look forward to the 
 assembly body of the Congress of the United States. 
 
 For Outlines and Material, see Appendix A. 
 
 DOCUMENT 
 Summons to Parliament (Oct. 3rd, 1295) 
 
 Report on The King to the Sheriff of Northamptonshire : 
 
 the Dignity Whereas, in order to make provision of remedies 
 
 App. i^P- 66, against the dangers which at this time menace the 
 translated realm, we desire to take counsel with the earls, 
 
1523-1536] CONTEMPORARY EXPOSITION 35 
 
 barons, and other noblemen of our kingdom, and by Henry A. 
 for that reason have commanded them to meet us ^^^ ^ / 
 on the Sunday next after the feast of Saint Martin ference be- " 
 in the winter next ensuing, at Westminster, for the tween this 
 discussing, ordaining and doing of whatsoever may summons 
 be best for the obviating of such dangers, ter of Henry 
 
 We do hereby firmly command and enjoin you ^- ^'^^'*'- ^■ 
 that there be chosen without delay from the afore- ]Srote Magna 
 said county two knights, and from every city of Charta, Art. 
 that county two citizens, from every borough two 
 burgesses, all men of superior discretion and ability 
 in affairs, and that you have them come to us at 
 the day and place aforesaid ; 
 
 In order that said knights shall have, in behalf 
 of themselves and the body of the county aforesaid, 
 full and sufficient power, and that said citizens and 
 burgesses shall have, in behalf of themselves and 
 the body of the cities and boroughs aforesaid both Note the in- 
 separately and collectively, full and suffl^cieut power, *^rease of 
 for doing what shall then be ordained by the com- House of 
 mon counsel in the premises ; so, that the business t:ommons. 
 aforesaid shall in no wise remain unaccomplished 
 for want of such power. 
 
 And have you there the names of the knights, 
 citizens, and burgesses, and this writ. 
 
 Witness the King at Canterbury the third day of 
 October. 
 
 CONTEMPORARY EXPOSITION 
 
 THOMAS OROMWELIi (1523) 
 
 Maister Creke, as hertelye as I can T commende me and in 
 the same wise thanke you (for youi*) gentill and louyng letter es 
 to me at sundrye tymys sent, and when as I accordinglye haue 
 not in lykewise remembrid and rescribid it hath been For that 
 I haue not hade anything to wryt of to your aduauncement. 
 Whom I assure you yf it were in my lyttyl power I coulde be 
 well contentyd to preferre as ferre as any one inan lyuyng. 
 But at this present I being at sum layser entending to re- 
 
36 THE SUMMONS TO PARLIAMENT [Ch. Ill 
 
 membre and also remanerate the olde acquayntaunces and to 
 renew oicr not forgoten sundrye communycacions supposing ye 
 desyre to know the neives curraunt in thes partyes for it is said 
 that newes refresshith the spy(rit) of lyfe, wherfor ye shall 
 onderstonde that bw long tyme I amongst other haue Indured 
 a parlyauient which contenwid by the space of xvij hole toekks 
 wher we communyd of warre pease stryfle contencyon debatte 
 murmure grudge Riches pouerte penwrre trowth falshode Jus- 
 tyce equyte discayte opprescyon Magnanymte act yuyte force 
 attem praunce Treason murder Felonye consyli . . . and also 
 how a commune welth myght be edify ed and a(lso) contenwid 
 within our Realme. Howbeyt, in conclusyon, we haue d(one) 
 as our predecessors haue been wont to doo, that ys to say, as 
 well as we myght and lefte wher we begann. Ye shall also 
 onderstond the Duke of Suthfolke Furnysshyd with a gret 
 armye goyth ouer in all goodbye haste (whit)her I know not," 
 when I know I shall aduertyse yow. Whe haue in our parlya- 
 ment grantyd onto the Kinges highness a ryght large subsyde, 
 the lyke wherof was neur grantyd in this realme. All your 
 frendes to my knowlage be in good helth and specially they 
 that ye wott of : ye know what I meaoe. I thinke it best to 
 wryt in parables becaus(e) I am in doubt. Maister Vawhan 
 Fareth well and so doth Maister Munkeaste(r). Maister 
 Wood all is merye withowt a wyffe and commeyidyth hym to you: 
 and so ys also Nycholas Longmede which hath payd William 
 Wilfforde. And thus as well f(are) ye as I woolde myself at 
 London the xvij daye of August by your Frende to all his 
 possible powei-. 
 
 Thomas Crumwell. 
 
 Add: To his (esp)ecial and entyrelye belouyd frende John 
 Creke be this youyn Bylbowe in Biscay e. 
 
 Ralph C. Merrill, Life of Thomas Cromwell (MS.), in the College 
 Office of Harvard University. 
 
 the coppy of the Kynges letter 
 
 In my herty wyse I recomendeme unto you these shalbe for- 
 
 asmoche as the Kynges plesur and comandement ys that Robert 
 
 Derknall and John Bryges schulbe electe and chosyn Citezin 
 
 or burgesses for that cite by reson wherof my lorde chaun- 
 
1523-1536] CRITICAL COMMENT 37 
 
 celer and I by owyr letteres written onto you aduertysed you 
 therof and ye the same little or nothynge regardynge but 
 ratther contemny haue closen othj'r at your owne wylles and 
 comandement in that behalfe wherat the kynges highnes dothe 
 not a lytell marvell wherefore in advoydyng of ferther dys- 
 plesur, that mygte therby ensue I require you on the kynges 
 behalfe that notwythstondynge seyd eleceion ye procede to a 
 new and electe thosse other, accordynge to the tenure of the 
 former letteres to you dyrectyd for that purpose tvitJiout faylyng 
 so to do as the kynges truste and expecion is in you and as 
 ye entende to avoide hys highness displesur at your parell and 
 yf any persone wyll obstynately gaynsay the same I require 
 you to aduertise me therof that I maye ordre hym as the 
 Jcynges plesur shalbe in that case to commands thus fare ye 
 well at the rolles the viii f day of May. 
 
 Your louynge frende, 
 
 Thomas Crumwell. 
 
 Add. : To my ryzth louynge frendes the mayr sheeyffe and 
 cominaltie of the Cite of Cannterhury and to euery of them. 
 
 [This official letter was written by Thomas Cromwell to the 
 "Magistrates" (i. e. , Town Council) of Canterbury, May 18, 
 1536. It is in the MS. Life of Cromwell, cited above.] 
 
 CRITICAL COMMENT 
 
 HALLAM (1818) 
 
 To grant money was therefore the mai^ object of their meet- 
 ing ; and if the exigencies of the administration could have been 
 relieved without subsidies, the citizens and burgesses might 
 still have sat at home, and obeyed the laws which a council 
 of prelates and barons enacted for their government. But it 
 is a difficult question, whether the king and the peers designed 
 to make room for them, as it were, in legislation ; and whether 
 the power of the purse drew after it immediately, or only by 
 degrees, those indispensable rights of consenting to laws which 
 
 they now possess. 
 
 Henry Hai.lam, Middle Ages. 370. 
 
 t Altered to this from " xx." 
 
38 THE SUMMONS TO PARLIAMENT [Ch, III 
 
 STUBBS (1873) 
 
 The design, as interpreted by the result, was the creation 
 of a national parliament, composed of the three estates, organ- 
 ized on the principle of concentrating local agency and ma- 
 chinery in such a manner as to produce unity of national action, 
 and thus to strengthen the hand of the king, who personified 
 the nation. This design was perfected in 1295. It was not 
 the result of compulsion, but the consummation of a growing 
 policy. Edward did not call his parliament ... on the spur 
 of a momentary necessity, or as a new machinery invented for 
 the occasion and to be thrown aside when the occasion was 
 over, but as a perfected organization, the growth of which he 
 had for twenty years been doing his best to guide. 
 
 William Stubes, Constitutional History of England. II. 305. 
 
 TASWELL-LANGMEAD (1879) 
 
 From 1265 to 1295 was a transitionary period : and it is 
 only from the latter year that we can date the regular and 
 complete establishment of a perfect representation of the Three 
 Estates in Parliament. . . . The position of the kingdom was 
 still critical, and Edward seems to have felt that he required 
 to be backed up by the whole nation, supporting him as well 
 by their common counsel and approval as by a general and 
 adequate grant of an aid. He accordingly, on the 30th of 
 September, summoned a parliament to meet at "Westminster 
 in the November following, so constituted as to represent and 
 have the power to tax the whole nation. 
 
 T. P. Taswell-Langmead, English Constitutional History. 200-207. 
 
 J. K. HOSMEE (1890) 
 
 It was in the autumn of 1295 that he (Edward I.) performed 
 his most memorable act, the last formal step which established 
 fully the representation of the Commons. . . . The forward 
 steps which the nation took, sometimes, to be sure, in spite of 
 him, but sometimes under his guidance, were most momentous. 
 The Great Charter was again and again confirmed, until it 
 became as fixed as the hills, in the national life. ... In 1297, 
 it was clearly established that there can be no taxation without 
 
1818-1900] CRITICAL COMMENT 39 
 
 representation, — a principle upon which, five hundred years 
 
 later, stood the Americans of '76. . . . Parliament, too, stood 
 
 forth, a well defined and organized expositor of the national will. 
 
 J. K. HosMER, Anglo-Saxon Freedom. 60, 61. 
 
 BOUTMT (1S91) 
 
 In 1295, the custom of summoning two knights from each 
 county had become fixed. . . . From that time forward no 
 Parliament was formally constituted without a summons ad- 
 dressed to each of these two classes. During the same period 
 another element had been admitted to the assembly. The 
 principal towns, those especially which possessed charters, 
 had been convoked in 1265 by Simon de Montfort; thirty 
 years later a royal ordinance called upon them to send two 
 inhabitants, citizens, or burgesses, as representatives, and after 
 that year they received regularly a summons to Parliament. 
 The year 1295 is therefore a date of capital importance. The 
 beginning of the fourteenth century found Parliament consist- 
 ing of all the essentials of a truly national assembly, and 
 representing even more completely than at the present day 
 (for certain elements have been lost by exclusion or disuse) 
 the various components of the English nation. 
 
 ifciiiLE BouTMT, English Constitution. 65, 66. 
 
 FREEMAN (1892) 
 
 One may certainly doubt whether Edward, when he sum- 
 moned a baron to Parliament, meant positively to pledge 
 himself to summon that baron's heirs for ever and ever or 
 even necessarily to summon the baron himself to every future 
 parliament. The facts are the other way : the summons still 
 for a while remains irregular. But the perpetual summons, 
 the hereditary summons, gradually became the rule, and that 
 rule may in a certain sense be said to date from 1295, the 
 year from which so many things parliamentary date. 
 
 Edwd. Freeman, House of Lords, in Fourth Series of Historical Essays. 454. 
 
 RANSOME (1895) 
 
 In this assembly were represented each of what were be- 
 ginning to be known as the three estates of the realm, the 
 
40 THE SUMMONS TO PARLIAMENT [Ch. Ill 
 
 clergy, the nobility, and the commonalty. . . . Thirty years 
 had elapsed since the citizens and burgesses had been called 
 to Simon de Montfort's convention in 1265. Since then it 
 had been no uncommon thing to summon knights and burgesses 
 to parliament, but the exact constitution of the assembly was 
 by no means definitely settled. . . . This is, therefore, the first 
 real parliament in which thejj^ had ever taken part. . . . The 
 meeting of the Model Parliament of 1295 was a memorable day 
 for England, and marks the beginning of a new era of parlia- 
 mentary government. 
 
 Cyril Ransome, Advanced History of England. 219, 220, 
 
 S. R. GARDINER (1895) 
 
 Edward, attacked on two sides, threw himself for support on 
 the English nation. Towards the end of 1295 he summoned a 
 Parliament which was In most respects the model for all suc- 
 ceeding Parliaments. It was attended not only by bishops, 
 abbots, earls, and barons, by two knights from every shire, 
 and two burgesses from every borough, but also by representa- 
 tives of the chapters of cathedrals and of the parochial clergy. 
 
 S. R. Gardiner, Student's History of England. 218. 
 G. B. ADAMS (1900) 
 
 If the burgesses were certain to be admitted into the older 
 institution there was nothing in that fact or in any other circum- 
 stance of the time that determined the form and character 
 which the new institution was to assume, and this was a ques- 
 tion of vital importance for the future. Upon it depended the 
 existence of the constitution quite as much as upon the survival 
 and the broadened significance of the ideas of the Magna 
 Carta. In this particular the decisive period, the danger 
 period, was that which extended from 1254 to 1295. We 
 have a right, I think, to make 1295 the date of the beginning 
 of Parliament. To be sure there was nothing whatever about 
 the parliament of 1295 considered by itself alone which indi- 
 cated that it was to be any more truly the model parliament 
 than any one of the diffei'ent experimental forms of the pre- 
 ceding forty years. It possessed more of the features of the 
 curia regis than of a later parliament ; the whole question of 
 
1818-1900] CRITICAL COMMENT 41 
 
 estates and of organization was still unsettled ; the struggle 
 for the supremacy of the new parliament over the survivals of 
 the old curia regis had still to be fought out in the following 
 century, but as a historical fact the parliament of 1295 was the 
 model parliament. The age of experimenting was over. In 
 all the creative fundamental principles, both of constitution 
 and of powers, Parliament was in existence as a different thing 
 institutionally from the old curia regis. The later development 
 was a perfection of details, au application of established prin- 
 ciples to a constantly enlarging range of cases, not a work of 
 new creation. 
 
 Geo. B. Adams, Critical Periods of English constitutional History, in Ameri- 
 can Historical Review (July, 1900). 656. 
 
42 CONFIRM A TIO CHARTARUM ' [Ch. IV 
 
 Chapter IV 
 CONFIRMATIO CHARTARUM (1297) 
 
 SUGGESTIONS 
 
 In events which led to this Charter we trace two distinct forces, each 
 of them the result of accumulating influence, but timed by an extra- 
 ordinary coincident, through the King's necessities, the treasury was 
 utterly drained. King Edward, from sheer want, was driven to tyran- 
 nous extortion, when planning his second attack on France with the 
 aid of Flanders. The Church and Baronage alike defied him. Bohun, 
 Earl of Hereford, and Bigod, Earl of Norfolk, headed the opposition. 
 Edward found himself powerless to move, and in a burst of feeling 
 owned that he had taken their substance without due warrant of law. 
 Still in want of money, he appealed to the barons, but they in turn 
 demanded redress of gi-ievances and the confirmation of Magna Charta. 
 In August, Edward proceeded to Ghent, leaving his son, Edward, 
 Prince of Wales, as Regent. As soon as the King had departed, the 
 Earls seized the opportunity to press their demands. Entering the 
 Exchequer, they peremptorily forbade the Barons there to levy the aid, 
 the grant of which they asserted had been illegally obtained, until the 
 charters had been confirmed. Supported by a large militai'y follow- 
 ing, and backed up by the citizens of London, they were masters of 
 the situation, and the young Prince and his Council found it necessary 
 to yield. The Confirmatio Chartarum, which, although a statute, is 
 drawn up in the form of a charter, was passed on the 10th of October, 
 1297, in a Parliament at which knights of the shire attended as repre- 
 sentatives of the Commons, as well as the lay and clerical Baronage. 
 It was immediately sent over to King Edward at Ghent, and there 
 confirmed by him on the 5th of November following. 
 
 In Confirmatio Chartarum, as in Magna Charta, we find a culmina- 
 tion of influences bringing about a document which has a vital place in 
 the organization of all future government. Such charters are " the 
 rallying-point of the oppressed and the offended," and no student of 
 American liberty can appreciate intelligently the struggle from 1765 
 to 1776 without an insight into the historic beginnings of " Taxation 
 loitliout repi^esentation.'^ 
 
 For Outlines and Material, see Appendix A. 
 
1297] TEXT 43 
 
 DOCUMENT 
 " Confirmatio Chartarum " of Edward I. (1297) 
 
 I. Edward, by the grace of God, King of Eng- The Statutes 
 
 land, Lord of Ireland, and Duke Guyan, to all those f^^ ^'^«''"' 
 
 that these present letters shall hear or see, greeting, translated 
 
 Know ye that we to the honour of God and of holy ^ William 
 
 Church, and to the profit of our realm, have granted Select Char- 
 
 for us and our heirs, that the Charter of Liberties iers, 486, 
 
 487 
 and the Charter of the Forest, which were made by 
 
 common assent of all the realm, in the time of King 
 Henry our father, shall be kept in every point with- 
 out breach. And we will that the same charters 
 shall be sent under our seal as well to our justices of The gist of 
 
 the forest as to others, and to all sheriffs of shires, M^S°^ , 
 ' . Cliarta and 
 
 and to all our other officers, and to all our cities of the Char- 
 
 throuohout the realm, together with our writs in the t^r of the 
 
 Forest ap- 
 which it shall be contained, that they cause the pg^j-g ^^ ^his 
 
 foresaid charters to be published, and to declare to article; by 
 the people that we have confirmed them in all points, tije^p^rero'^a- 
 and that our justices, sheriffs, mayors, and other tive of levy- 
 ministers which under us have the laws of our land i^S internal 
 
 taxes was 
 to guide, shall allow the said charters pleaded before given up. 
 
 them in judgment in all their points ; that is to 
 wit, the Great Charter as the common law, and the 
 Charter of the Forest according to the Assize of the 
 Forest, for the wealth of our realm. 
 
 II. And we will that if any judgment be given 
 from henceforth, contrary to the points of the char- 
 ters aforesaid, by the justices or by any other our The remedy- 
 ministers that hold plea before them against the t^^ry iud"-- ' 
 points of the charters, it shall be undone and holden ment lay in 
 for nought. tlielawof 
 
 ° Art. 11. 
 
 III. And we will that the same charters shall be 
 
 sent under our seal to cathedral churches throughout 
 
 our realm, there to remain, and shall be read before 
 
 ,1 T J. J.- -u U.1 Arts. iii. and 
 
 the people two times by the year. i^ jjjj^jj ^j^g 
 
 IV. And that all archbishops and bishops shall authority of 
 pronounce the sentence of great excommunication Church. 
 
44 
 
 CONFIRM ATIO CHARTARUM 
 
 [Ch. IV 
 
 Articles v., 
 vi., and vii. 
 contain the 
 essence of 
 the principle, 
 " No taxa- 
 tion without 
 representa- 
 tion." 
 
 Beginning of 
 a system by 
 which taxes 
 in foreign 
 
 against all those that by word, deed,, or counsel do 
 contrary to the foresaid charters, or that in any 
 point break or undo them. And that the said curses 
 be twice a year denounced and published by the 
 prelates aforesaid. And if the prelates or any of 
 them be remiss in the denunciation of the said sen- 
 tences, the Archbishops of Canterbury and York 
 for the time being, as is fitting, shall compel and 
 distrein them to make that denunciation in form 
 aforesaid. 
 
 V. And for so much as divers people of our realm 
 are in fear that the aids and tasks which they have 
 given to us beforetime towards our wars and other 
 business, of their own grant and goodwill, howso- 
 ever they were made, might turn to a bondage to 
 them and their heirs, because they might be at 
 another time found in the rolls, and so likewise the 
 prises taken throughout the realm by our ministers ; 
 we have granted for us and our heirs, that we shall 
 not draw such aids, tasks, nor prises into a custom, 
 for anything that hath been done heretofore, or that 
 may be found by roll or in any other manner. 
 
 VI. Moreover we have granted for us and our 
 heirs, as well to archbishops, bishops, abbots, priors, 
 and other folk of holy Church, as also to earls, 
 barons, and to all the commonalty of the land, that 
 for no business from henceforth will we take such 
 manner of aids, tasks, nor prises, but by the com- 
 mon consent of the realm, and for the common profit 
 thereof, saving the ancient aids and prises due and 
 accustomed. 
 
 VII. And for so much as the more part of the 
 commonalty of the realm find themselves sore grieved 
 with the maletote of wools, that is to wit, a toll of 
 forty shillings for every sack of wool, and have made 
 petition to us to release the same ; we, at their re- 
 quests, have clearly released it, and have granted 
 for us and our heirs that we shall not take such thing 
 nor any other without their common assent and good 
 
1297] CRITICAL COMMENT 45 
 
 will ; saving to us and our heirs the custom of wools, trade were 
 skins, and leather granted before by the commonalty to^arlia- ^^*^ 
 aforesaid. In witness of which things we have ment. 
 caused these our letters to be made patents. Wit- 
 ness Edward our son at London, the 10th day of 
 October, the five and twentieth year of our reign. 
 
 And be it remembered that this same charter, in 
 the same terais, word for word, was sealed in Flan- 
 ders under the king's great seal, that is to say, at 
 Ghent, the 5th day of November in the 25th year of 
 the reign of our aforesaid lord the king, and sent 
 into England. 
 
 CONTEMPORARY EXPOSITION 
 
 BARTHOLOMEW DE COTTON (1297) 
 
 His majesty the King conceded to all who owed him service 
 and to all holders of twenty measures of land that they should 
 not be held to go with him into Flanders except for the perform- 
 ance of promises and of military service due said King. 
 
 Bartholomew de Cotton, Historia Anglicana, translated by H. A. 
 Clapp (1900). 327. 
 
 CRITICAL COMMENT 
 HALLAM (1818) 
 
 That famous statute, inadequately denominated the confirma- 
 tion of the charters, because it added another pillar to our 
 Constitution, is not less important than the great charter itself. 
 Hitherto the King's prerogative of levying money. . . . had 
 passed unquestioned. Some impositions, that especially on the 
 export of wool, affected all the King's subjects. It was now 
 the moment to enfranchise the people, and give that security to 
 private property which Magna Charta had given to personal 
 liberty. 
 
 Henkt Hallam, Middle Ages. 354. 
 
46 CONFIRMATIO CHARTARUM [Ch. IV 
 
 MACAULAY (1849) 
 
 That the King could not impose taxes without the consent 
 of parliament is admitted to have been, from time immemorial, 
 a fundamental law of England. It was among the articles 
 which John was compelled by the Barons to sign. Edward I. 
 ventured to break through the rule, but able, powerful, and 
 popular as he was, he encountered an opposition to which he 
 found it expedient to yield. He covenanted, accordingly in 
 express terms, for himself and for his heirs, that they would 
 never again levy any aid without the assent and good will of 
 the estates of the realm. 
 
 Mac AULA Y, History of England. I. 25. 
 
 STUBBS (1873) 
 
 The charters were confirmed by inspeximus on the 12th ; the 
 King on the 5th of November at Ghent confirmed both the char- 
 ters and the new articles. These articles are the summary of the 
 advantages gained at the termination of the struggle of eighty- 
 two years, and in words they amount to very little more than 
 a reinsertion of the clauses omitted from the Great Charter of 
 John. The " Confirmatio Cartarum " is one of the most curious 
 phenomena of our national history, whether it be regarded as 
 the result of an occasional crisis, or as the decision, no longer 
 to be delayed, of a struggle of principles. . . . The forces 
 which seized that opportunity were ready, and were the result 
 of a long series of causes and the working of principles which 
 must sooner or later have made an opportunity for themselves. 
 Such a crisis, if they had separately attempted to bring it 
 about, might have changed the dynasty, or subverted the 
 relations of church and state, crown and parliament, but ac- 
 cepted as it came, it brought about a result singularly in har- 
 mony with what seems from history and experience to be the 
 natural direction of English progress, 
 
 William Stubbs, Constitutional History of England. II. 150, 151. 
 TASWELL-LANGMEAD (1879) 
 
 The " Confirmatio Chartarum," which, although a statute, is 
 drawn up in the form of a charter, was passed on the 10th of 
 
1818-1889] CRITICAL COMMENT ■ 47 
 
 October, 1297, in a Parliament at which Knights of the Shire 
 attended as representatives of the Commons, as well as lay and 
 clerical baronage. . . . The " Confirmatio Chartarum " was not 
 merely a re-issue of Magna Charta and the Charter of the 
 Forest, — but the enactment of a series of new provisions in- 
 tended to deprive the Crown in the future of its assumed right 
 of arbitrary taxation. . . . The exclusive right of Parliament 
 to impose taxation, though often infringed by the illegal exer- 
 cise of prerogative, became from this time an axiom of the 
 Constitution. 
 
 T. P. Taswell-Langmead, E'njrZi'sA Constitutional History. 216,217. 
 
 FEILDEN (1882) 
 
 The reign of Edward I. is marked by the admission of the 
 Commons to Parliament, and by the partial surrender on the 
 part of the Crown of its claims to arbitrary taxation. In 1297, 
 Humphrey Bohun, Earl of Hereford, Roger Bigod, Earl of 
 Norfolk, and Archbishop Winchelsey, representing baronial 
 and clerical interests, extorted from Edward the Confirmatio 
 Chartarum. 
 
 H. St. C. Feilden, Slwrt Constitutional History of England. 18. 
 
 RUDOLF VON GNBIST (1889) 
 
 This Confirmatio Chartarum, in French and Latin text, 
 represents, in fact, a fundamental law comparable with Magna 
 Charta, and to the credit of the Crown in contrast with the 
 events of 1215. . . . The main point . . . was that the right 
 constantly contended for since Magna Charta in 1215 of signi- 
 fying an assent to the taxes, had after a lapse of a century 
 been at last achieved, and this on a broad footing of the land- 
 owning classes, which in fact pay them. 
 
 Rudolf von Gneist, History of the Eng. Parliament, translated by A. H. 
 Keane. I. 159. 
 
 HANNIS TAYLOR (1889) 
 
 Not until eighty years after the issuance of the Great Charter 
 did the nation finally win, through the Confirmatio Cartarum, 
 a permanent constitutional guarantee that taxes should never 
 be imposed by the unaided force of the royal authority. . . . 
 
48 CONFIRMATIO CHARTARUM [Ch. IV 
 
 In the parliament of 1295 the three estates appeared in per- 
 son or by representatives : the hiy and spiritual baronage repre- 
 sented themselves, the inferior clergy and the commons, each 
 as an estate of the realm, appeared through their chosen repre- 
 sentatives. Two years after the national assembly was thus 
 constituted, the long struggle of the nation for the right to tax 
 itself was closed at the end of the " Barons' War " by the Con- 
 firmatio Cartarum, wherein Edward I. was made to promise 
 the clergy, the barons and " all the commonalty of the land, that 
 for no business from henceforth will we take such manner of 
 aids, tasks, nor prizes, but by the common assent of the realm, 
 and for the common profit thereof, saving the ancient aids and 
 prizes due and accustomed." 
 
 Hannis Tatloe, Origin and Growth of the English Constitution. 11. 11-13. 
 
1429] LEGAL FORMS AND JURY TRIALS— TEXT 49 
 
 Chapter V 
 LEGAL FORMS AND JURY TRIALS (1429) 
 
 SUGGESTIONS 
 
 The Statute 8 Henry VI. 12 is chosen as the type of the many statutes 
 enacted in the Lancastrian Period. Referred to by Sir John For- 
 tescue (whose interpretation of the English laws of the fifteenth cen- 
 tury forms a running commentary upon the government of his day) 
 this statute seems particularly worthy of place amongst our docu- 
 ments. This is the earliest mention, in a statute, of the system of 
 trial by jury — "Inquest to be taken of lawful men." 
 
 The system of judicature is too technical and too far-reaching to be 
 developed as a correlation of constitutional government, but it is well 
 to give a cursory glance at Curia Regis, the Laws of Henry II., and 
 the growth of Trial by Jury, that the principle of " liberty of the 
 subject " may here be shown to have a legal as well as a moral sup- 
 port in the history of Anglo-Saxon government. 
 
 Throughout the earlier study, suggested by the topics in the Appen- 
 dix, the development of the court and trial by jury are constantly 
 referred to as a basis for research. 
 
 For Outlines and Material, see Appendix A. 
 
 DOCUMENT 
 Statutes: 8 Henry VI. Cap. 12 (1429) 
 
 No Judgment or Record shall be reversed for any The Statutes 
 Writ, Process, &c. , rased. What Defects in Records f^^''^^^' ^■' 
 may be amended by the Judges, and what not. 
 
 Item, our Lord the King had ordained and estab- 
 lished by the authority of this present parliament, 
 That for error assigned, or to be assigned, in any 
 record, process, or warrant of attorney, original Assured dig- 
 writ or judicial, panel or return, in any places of ^an^ or Vrft^' 
 the same rased or interlined, or in any addition, 
 
 4 
 
50 
 
 LEGAL FORMS AND JURY TRIALS 
 
 [Ch. V 
 
 Changes to 
 be made by 
 judges if 
 needful. 
 
 Exceptions: 
 records not to 
 be amended 
 in certain 
 cases. 
 
 Judges' right 
 to correct 
 variance be- 
 tween record 
 and certi- 
 ficate of 
 same. 
 
 subtraction, or diminution of words, letters, titles, 
 or parcel of letters, found in any such record, proc- 
 ess, warrant of attorney, writ, panel, or return, 
 which rasings, interlinings, addition, subtraction, 
 or diminution, at the discretion of the King's judges 
 of the courts and places, in which the said records 
 or process by writ of error, or otherwise, be certi- 
 fied, do appear suspected, no judgment nor record 
 shall be reversed nor adnulled. 
 
 II. And that the King's judges of the courts and 
 places in which any record, process, word, plea, 
 warrant of attorney, writ, panel, or return, which 
 for the time shall be, shall have power to examine 
 such records, process, words, pleas, warrants of 
 attorney, writs, panels, or return, by them and their 
 clerks, and to reform and amend (in affirmance of 
 the judgments of such records and processes) all 
 that which to them in their discretion seemeth to be 
 misprision of the clerks in such record, processes, 
 word, plea, warrant of attorney, writ, panel, and 
 return ; (2) except appeals, indictments of treason 
 and of felonies, and the outlawries of the same, and 
 the substance of the proper names, surnames, and 
 additions, left out in original writs and writs of 
 exigent, according to the statute another time made 
 the first year of King Henry, father to our lord the 
 King that now is, and in other writs containing 
 proclamation ; (3) so that by such misprision of the 
 clerk no judgment shall be reversed nor adnulled. 
 (4) And if any record, process, writ, warrant of 
 attorney, return, or panel be certified defective, 
 otherwise than according to the writing which thereof 
 remaineth in the treasury, courts, or places from 
 whence they be certified, the parties in affirmance 
 of the judgments of such record and process shall 
 have advantage to alledge, that the same writing is 
 variant from the said certificate, and that found and 
 certified, the same variance shall be by the said 
 judges reformed and amended according to the first 
 writino;. 
 
1450-1518] CONTEMPORARY EXPOSITION 51 
 
 III. And moreover it is ordained, that if any 
 record, or parcel of the same writ, return, panel, 
 process, or warrant of attorney in the King's courts 
 of chancery, exchequer, the one beach or the other, 
 or in his treasury, be willingly stolen, taken away, 
 withdrawn, or avoided by any clerk, or by other 
 person, because whereof any judgment shall be re- 
 versed ; that such stealer, taker away, withdrawer, 
 
 or avoider, their procurators, counsellors, and abet- Punishment 
 
 tors, thereof indicted, and by process thereupon ^orembez- 
 
 ' . 1 , . ^ zhng a record 
 
 made thereof duly convict by their own confession, to be felony. 
 
 or by inquest to be taken of lawful men, whereof 
 
 the one half shall be of the men of any court of the 
 
 same courts, and the other half of other, shall be 
 
 judged for felons, and shall incur the pain of felony. 
 
 (2) And that the judges of the said courts of the 
 
 one bench or of the other, have power to hear and 
 
 determine such defaults before them, and thereof to 
 
 make due punishment as afore is said. 
 
 IV. Provided always. That if any such record, 
 process, writ, or warrant of attorney, panel, or re- 
 turn, or parcel of the same, be now, or hereafter 
 shall be exemplified in the King's chancery under 
 the great seal, and such exemplification there of 
 record inrolled without any rasing in the same place 
 in the exemplification and the iurollment of the 
 same, that another time for any error assigned, or 
 to be assigned in the said record, process, writ, 
 
 warrant of attorney, panel, or return, in any letter, Power of the 
 word, clause, or matter of the same varying, or con- ^^^^* ^^^^• 
 trary to the said exemplification and the inrollment, 
 there shall be no judgment of the said records and 
 process reversed nor adnuUed. 
 
 CONTEMPORARY EXPOSITION 
 
 FORTESCUE (1450) 
 
 The way of proceeding in civil cases. 
 
 Twelve Good and true Men being sworn, as in the Manner 
 above related, legally qualified, that is, having over and besides 
 
52 LEGAL FORMS AND JURY TRIALS [Ch. V 
 
 their Moveables, Possessions in Land sufficient (as was said) 
 wherewith to maintain their Rank and Station ; neither sus- 
 pected by, nor at Variance with either of the Parties ; all of the 
 Neighbourhood ; there shall be read to them, in English, by the 
 Court, the (a) Record and Nature of the Plea, at length, which 
 is depending between the Parties ; and the Issue thereupon 
 shall be plainly laid before them, concerning the Truth of which, 
 those who are so sworn, are to certify the Court : Which done, 
 each of the Parties, by (b) Themselves or their Counsel, in 
 Presence of the Court, shall declare and lay open to the Jury 
 all and singular the Matters and Evidences, whereby they think 
 they may be able to inform the Court concerning the Truth of 
 the Point in Question ; after which each of the Parties has a 
 Liberty to produce before the Court all such Witnesses as they 
 please, or can get to appear on their Behalf; who being charged 
 upon their Oaths, shall give in Evidence all that they know 
 touching the Truth of the Fact, concerning which the Parties 
 are at Issue : And, if Necessity so require, the Witnesses may 
 be heard and examined apart, till they shall have deposed all 
 that they have to give in Evidence, so that what the One has 
 declared shall not inform or induce another Witness of the same 
 Side, to give his Evidence in the same Words, or to the very 
 same Effect. The whole of the Evidence being gone thro', the 
 Jurors shall confer together, at their Pleasure, as they shall 
 think most convenient, uponthe Truth of the Issue before them; 
 with as much deliberation and Leisure as they can well desire, 
 being all the While in the Keeping of an Officer of the Court, 
 in a Place assigned them for that Purpose, Lest any One should 
 attempt by indirect Methods to influence them as to their Opin- 
 ion, which they are to give in to the Court. Lastly, They are 
 to return into Court and certify the Justices upon the Truth of 
 the Issue so joined, in the Presence of the Parties (if they please 
 to be present) particularly the Person who is Plaintiff in the 
 Cause ; what the Jurors shall so certify in the Laws of England, 
 is called (c) the Verdict. In Pursuance of which Verdict, the 
 Justices shall render and form their Judgment. Notwithstand- 
 ing, if the (d) Party, against whom such Verdict is obtained, 
 complain that He is thereby aggrieved. He may sue out a Writ 
 of Attaint, both against the Jui'y, and also against the Party 
 
1450-1518] CONTEMPORARY EXPOSITION 53 
 
 who obtained it: in Virtue of which, if it be found upon the 
 Oath of (e) Twenty-four Men (returned in Manner before ob- 
 served, chosen and sworn in due Form of Law, who ought to 
 have much better Estates than those who were first returned 
 and sworn) that those, who were the Original Panel and sworn 
 to try the Fact, have given a Verdict, f (15), contrary to 
 Evidence, and their Oath ; Every One of the first Jury shall 
 be (g) committed to the Publick Gaol, their G-oods shall be 
 confiscated, their Possessions seised into the King's Hands, 
 their Habitations and Houses shall be pulled down, their Wood- 
 lands shall be selled, their Meadows shall be plowed up, and 
 they themselves shall ever thenceforward be esteemed, in the 
 Eye of the Law, Infamous, and in no Case whatsoever, h (16), 
 are they to be admitted to give Evidence in any Court of 
 Record : The Party, who suffered in the former Trial, shall 
 be restored to every Thing they gave against Him, thro' Occa- 
 sion of such their False Verdict : And, who then (tho' He 
 should have no Regard to Conscience or Honesty) being so 
 charged upon his Oath, would not declare the Truth from the 
 bare Apprehensions and Shame of so Heavy a Punishment, and 
 the very great Infamy which attends a contrary Behaviour: 
 And, if perhaps, one or more amongst them should be so un- 
 thinking or daring, as to prostitute their Character, yet the rest 
 of the Jurors, probably, will set a better Value on their Repu- 
 tations than to suffer either their Good Name or Possessions to 
 be destroyed and seised in such a Manner : (i) Now, is not this 
 Method of coming at the Truth better and more effectual, than 
 that Way of Proceeding, which the Civil Laws prescribe ? No 
 one's Cause or Right is, in this Case, lost, either by Death or 
 Failure of Witnesses. The (k) Jurors returned are well known ; 
 they are not procured for Hire ; They are not of Inferior Con- 
 dition ; neither Strangers, nor People of Uncertain Characters, 
 whose Circumstances or Prejudices may be unknown. The (k) 
 Witnesses or Jurors are of the Neighbourhood, able to live of 
 themselves, of Good Reputation and unexceptionable Charac- 
 ters, not brought before the Court by either of the Parties, but 
 (1) chosen and returned by a proper Officer, a worthy, disin- 
 terested and indifferent Person, and obliged under a Penalty to 
 appear upon the Trial. (k) They are well acquainted with all 
 
54 LEGAL FORMS AND JURY TRIALS [Ch. V 
 
 the Facts which the Evidences depose, and with their several 
 Characters, (m) What need of more Words? There is nothing 
 omitted which can discover the Truth of the Case at Issue, 
 nothing which can in any Respect be concealed from, or un- 
 known to a Jury who are so appointed and returned, I say, as 
 far as it is possible for the Wit of Man to devise. 
 
 SlE John Foktescue, De Laudibus Legis Angliui. XXVI. (civl. 1450). 
 
 SAINT-aERMAIN (1518) 
 
 Doctor. If one of the twelve men of an inquest know the 
 very truth of his own knowledge, and instructeth his fellows 
 thereof, and they will in no wise give credence to him, and 
 thereupon, because meat and drink is prohibited them, he is 
 given to that point, that either he must assent to them, and give 
 their verdict against his own knowledge and against his own 
 conscience, or die for lack of meat, how may the law then stand 
 with conscience, that will drive an innocent to that extremity, to 
 be either forsworn, or to be famished and die for want of meat? 
 
 Student. I take not the law of the realm to be, that the jury 
 after they be sworn may not eat nor drink till they be agreed of 
 the verdict, but truth it is there is a maxime and an old custom 
 in the law that they shall not eat nor drink after they be sworn 
 till they have given their verdict, without the assent and license 
 of the justices and that is ordained by the law for eschew-. 
 ing divers inconveniences that might follow thereupon, and that 
 specially if they should eat or drink at the costs of the parties ; 
 and therefore if they do contrary, it may be laid in arrest of 
 the judgment ; but with the assent of the justices thej^ may both 
 eat and drink, as if any of the jurors fall sick before they be 
 agreed of the verdict, so sore that he may not commune of the 
 verdict, then by the assent of the justices he may have meat 
 and drink, and also such other things as be necessary for him. 
 Cheistopher Saint-Germain, The Doctor and The Student. 158. 
 
 CRITICAL COMMENT 
 
 BLACKSTONE'S COMMENTARIES (1765) 
 
 The learned judge has displayed much erudition in the 
 beginning of this chapter to prove the antiquity of the trial by 
 
1765-1894] CRITICAL COMMENT 55 
 
 jury ; but the trials referred to by the authors there cited, and 
 even th&judicimn pariicm [the judgment of peers] mentioned 
 in the celebrated chapter of Magna Charta, are trials which 
 were something similar to that by a jury, rather than instances 
 of 'a trial by jury according to the present established form. 
 The judicium pariiim seems strictly the judgment of a subject's 
 equals in the feudal courts of the king and barons. And 
 so little appears to be ascertained by antiquarians respecting 
 the introduction of the trial in criminal cases by two juries, 
 that although it is one of the most important, it is certainly one 
 of the most obscure and inexplicable, parts of the law of Eng- 
 land. The unanimity of twelve men, so repugnant to all ex- 
 perience of human conduct, passions, and understandings, 
 could hardly in any age have been introduced into practice by 
 a deliberate act of the legislature. 
 
 But that the life, and perhaps the liberty and property, of a 
 subject should not be affected by the concurring judgment of 
 a less number than twelve, where more were present, was a law 
 founded in reason and caution, and seems to be transmitted to 
 us by the common law, or from immemorial antiquity. The 
 grand assize might have consisted of more than twelve, yet the 
 verdict might have been given by twelve or more; and if 
 twelve did not agree, the assize was afforced, — that is, others 
 were added till twelve did concur. . . . This was a majority, 
 and not unanimity. A grand jury may consist of any number 
 from twelve to twenty-three inclusive, but a presentment ought 
 not to be made by less than twelve. . . . The same is true also 
 of an inquisition before the coroner. In the high court of 
 parliament and the court of the lord high steward a peer may 
 be convicted by the greater number; yet there can be no 
 conviction unless the greater number consists at least of 
 twelve. . . . Under a commission of lunacy the jury was seven- 
 teen, but twelve joined in the verdict. ... A jury upon a writ 
 of inquiry may be more than twelve. In all these cases, if 
 twelve only appeared, it followed as a necessary consequence 
 that to act with effect they must have been unanimous. Hence 
 this may be suggested as a conjecture respecting the origin 
 of the unanimity of juries, that, as less than twelve — if 
 twelve or more were present — could pronounce no effective 
 
56 LEGAL FORMS AND JURY TRIALS [Ch. V 
 
 verdict, when twelve only were sworn, their unanimity became 
 
 indispensable. 
 
 Sir William Blackstone, Commentaries on the Laws of England. III. 376. 
 
 GEORGE SPENCB (1846) 
 
 The exercise of the control last adverted to on the part of the 
 judges was the foundation of that system of rules in regard to 
 evidence which has since constituted so large and important a 
 branch of the law of England. 
 
 The practice of receiving evidence openly at the bar immedi- 
 ately led to another remarkable result — namely, the great 
 extension of the duty of an advocate. "In earlier times — 
 upon criminal as well as civil inquiries — the jury after they had 
 been sworn and merely charged by the court as to the points 
 at issue, retired to consult together in secret without hearing 
 either witnesses or counsel at the bar. But now the scene was 
 totally changed ; witnesses were examined and cross-examined 
 in open court; the floodgates of forensic eloquence were opened, 
 and full scope given to the advocate to exercise his ingenuity 
 and powers of persuasion on the jurors, to whose discretion the 
 power of judging on matters of fact was now intrusted." 
 
 Another important consequence followed — when the jury in 
 an assize gave or were presumed to give their verdict upon 
 facts within their knowledge, if they came to a wrong decision 
 they must usually have been guilty of perjury. When they 
 became jndges of the facts upon evidence, the liability to 
 attaint would have been as unreasonable and unjust as in the 
 case of an ordinary jury: it therefore virtually fell into disuse. 
 Thenceforth the means of correcting error and mistake on the 
 part of a jury, was left without adequate remedy by the courts 
 of law until the seventeenth century, when the practice of 
 granting new trials was introduced, which I shall have occasion 
 again to advert to in tracing the equitable jurisdiction of the 
 Court of Chancery (1). 
 
 The last change in the institution of jury trial is of compara- 
 tively modern introduction ; it is the limiting the functions of 
 the jury to that of being judges of fact upon evidence laid 
 before them. The principles, Mr. Starkie obsei'ves, which 
 warranted this change are obvious ; it was found that the 
 
1765-1894] CRITICAL COMMENT 67 
 
 cause of truth suffered more from the prejudices which the 
 residence of jurors in the neighbourhood of the disputed fact 
 were likely to engender, than was gained from knowledge and 
 means of judging so acquired (2). Other inconveniences arose 
 from the rules as to the Venue, so that, after various modifica- 
 tions as to the number of persons from the hundred or vicinage 
 that were to be put upon the jury by the Stat. 4 & 5 Anne, c. 
 16, and 24 Geo. II., c. 18, the law requiring jurors to be re- 
 turned from the vicinage or hundred was abolished in all civil 
 actions and it was directed that they should be summoned from 
 the body of the county. B}' a decision of the Court of Queen's 
 Bench in the first year of Queen Anne, it was held that if a 
 jury gave a verdict of their own knowledge, they ought so to 
 inform the Court, that they might be sworn as witnesses. 
 This, and another case in the reign of George I. put an end to all 
 remains of the ancient functions of juries as recognitors. The 
 question, therefore, adds Mr. Starkie, When did the trial by 
 jury begin? admits of no definite answer, otherwise than by 
 referring to the different transitions to which allusion has been 
 made (3). 
 
 George &p'E.'sce., Equitable Jurisdiction of the Court of Chancery. I. 129. 
 
 FORSYTH (1852) 
 
 The rise and growth of the Jury system is a subject which 
 ought to interest not only the lawyer but all who value the 
 institutions of England, of which this is one of the most re- 
 markable, being until recently a distinctive feature of our 
 jurisprudence. . . . Trial by Jury does not owe its existence 
 to any positive law : — -it is not the creature of an Act of 
 Parliament establishing the form and defining the functions 
 of the new tribunal. It arose, as I hope to show, silently and 
 gradually out of the usages of a state of society which has 
 forever passed away. . . . Few subjects have exercised the 
 ingenuity and baffled the research of the historian more than 
 the origin of the jury. ... I believe it to be capable almost 
 of demonstration, that the English jury is of indigenous 
 growth, and was not copied or borrowed from any of the 
 tribunals that existed on the continent. . . . 
 
 The first mention of the trial by assise in our existing 
 
58 LEGAL FORMS AND JURY TRLALS [Ch. V 
 
 statutes occurs in the Constitutions of Clarendon, a. d. 1164, 
 where it was provided that if any dispute arose between a 
 layman and a clerk as to whether a particular tenement was 
 the property of the church or belonged to a lay fief, this was 
 to be determined before the chief justiciary of the kingdom, by 
 the verdict of twelve lawful men. . . . The problem is to dis- 
 cover what was the origin and constitution of the jurata. . . . 
 
 I conclude that, in the earliest times, disputes respecting 
 lands were decided by the voice of the community of the 
 county or hundred, as the case might be, where the parties 
 lived, that afterwards a select number was substituted for the 
 whole, who gave their testimony upon oath, and therefore were 
 called the ' jurata; ' and that this suggested to Henry II. and 
 his councillors the idea of the assise, which was nothing but 
 the jurata in a technical form, and limited to inilites, or knights 
 who were summoned by a writ of the sheriff in virtue of a 
 precept from the king. . . . 
 
 As the use of juries became more frequent, and the advan- 
 tages of employing them in the decision of disputes more mani- 
 fest, the witnesses who formed the secta of a plaintiff began to 
 give their evidence before them, and, like the attesting wit- 
 nesses to deeds, furnished them with that information which in 
 theory they were supposed to possess previously respecting the 
 cause of quarrel. . . . 
 
 In the time of Fortescue, who was lord chancellor in the 
 reign of Henry VI., with the exception of the requirement of 
 personal knowledge in the jurors derived from near neighbour- 
 hood of residence, the jury system had become in all its 
 essential features similar to what now exists. . . . 
 
 In England, the jury and the witnesses were for many years 
 the same, so that it was only just that they should be punished 
 if they wilfully gave their evidence, that is their verdict, con- 
 trary to what they knew to be the truth. And this seems to 
 have been too common. In the tenth year of the reign of 
 Henry VI. a petition was presented to the Commons, com- 
 plaining of the disherisons and injustice committed in assises 
 and other inquests by perjured jurors, and praying that in a 
 writ of attaint the plaintiff may recover his damages against 
 the petit jury, and every member thereof, as well as against 
 
1765-1894] CRITICAL COMMENT 59 
 
 the defendant, and that no juror might serve on an attaint 
 unless he had an estate of five pounds a year in the county. 
 
 William Eorstth, History of Trial by Jury. 1-185. 
 J. R. GREEN (1874) 
 
 The Wars of the Roses did far more than ruin one royal 
 house or set up another on the throne. If they did not utterly 
 destroy English freedom, they arrested its progress for more 
 than a hundred 3^ears. They found England, in the words of 
 Commines, "among all the world's lordships of which I have 
 knowledge, that where the public weal is best ordered, and 
 where least violence reigns over the people." A King of 
 England — the shrewd observer noticed — "can undertake no 
 enterprise of account without assembling his Parliament, which 
 is a thing most wise and holy, and therefore are these kings 
 stronger and better served " than the despotic sovereigns of 
 the Continent. The English kingship, as a judge, Sir John 
 Fortescue, could boast when writing at this time, was not an 
 absolute but a limited monarchy; the land was not a laud 
 where the will of the prince was itself the law, but where the 
 prince could neither make laws nor impose taxes save by his 
 subjects' consent. At no time had Parliament played so con- 
 stant and prominent a part in the government of the realm. 
 At no time had the principles of constitutional liberty seemed 
 so thoroughly understood and so dear to the people at large. 
 The long Parliamentary contest between the Crown and the 
 two Houses since the days of Edward the First had firmly 
 established the great securities of national liberty — the right 
 of freedom from arbitrary taxation, from arbitrary legislation, 
 from arbitrary imprisonment, and the responsibility of even 
 the highest servants of the Crown to Parliament and to the 
 law. But with the close of the struggle for the succession 
 this liberty suddenly disappears. We enter on an epoch of 
 constitutional retrogression in which the slow work of the age 
 that went before it was rapidly undone. Parliamentary life 
 was almost suspended, or was turned into a mere form by the 
 overpowering influence of the Crown. The legislative powers 
 of the two Houses were usurped by the royal Council. 
 
 J. R. Green, Short History of the English People. 289, 290. 
 
60 LEGAL FORMS AND JURY TRIALS [Ch. V 
 
 TASWELL-LANGMEAD (1879) 
 
 The use of a Jury, both for criminal presentment and civil 
 inquest, is mentioned for the first time in our statute law in 
 the Constitutions of Clarendon. The way in which the jury 
 is therein referred to seems to imply that it had already grown 
 into general use and favour. When one could be found to 
 accuse a powerful layman amenable to the Bishop's jurisdic- 
 tion, the sheriffs, at the Bishop's request, were directed to 
 "swear twelve lawful men of the^ neighbourhood to tell the 
 truth, according to their conscience," and the same statute 
 declared that " by the recognition of twelve lawful men," the 
 Chief Justice should decide all disputes as to the lay or clerical 
 tenure of land. 
 
 It was in the G-rand Assize (the exact date of which is un- 
 known) that the principle of recognition by jury, having grad- 
 ually grown into familiar use in various civil matters, was 
 applied by Henry II., in an expanded and technical form, to 
 the decision of suits to try the right to land. It is described 
 by Glanvill as a Royal boon conferred on the people, with the 
 counsel and consent of the proceres, to relieve freeholders from 
 the hardship of defending the title to their lands by the doubt- 
 ful issue of trial by battle. By the Grand Assize the defend- 
 ant was allowed his choice between wager of battle and the 
 recognition (i. e., knowledge) of a jury of twelve sworn knights 
 of the vicinage summoned for that purpose by the sheriff. 
 
 In actions not seeking to detei'mine the absolute right to 
 land, but dealing with the seisin only (of which the "assize 
 of novel disseisin " was the most important) , the sheriff himself 
 chose twelve knights or freeholders (legales homines) of the 
 vicinage, who were sworn to try the question. In both cases 
 the recognitors were sworn to found their verdict upon their 
 own knowledge, gained either by eye-witness or by the words 
 of their fathers, or by such words as they are bound to have 
 as much confidence in as if they were their own. The proceed- 
 ing by assize was in fact merely the sworn testimony of a 
 certain number of persons summoned to give evidence upon 
 matters within their own knowledge. They were themselves 
 the only witnesses. If all were ignorant of the facts, a fresh 
 jury had to be summoned ; if some of them only were ignorant, 
 
1765-1894] CRITICAL COMMENT 61 
 
 or if they could not agree, others were to be c. Wed — a process 
 subsequently called afforcing the jury — until a verdict could 
 be obtained from twelve unanimous witnesses. 
 
 The remedy by Assize was subsequently improved by several 
 Acts of Parliament, particularly 13 Ed. 1. c. 25 ; and as all 
 actions on the assize were tried in the King's Court or in that 
 of the Justices Itinerant, the jurisdiction of the County and 
 Hundred Courts began, from this period, rapidly to decline. 
 
 By the Assize of Clarendon the principle of Recognition by 
 jury was extended to criminal cases. It was ordained that in 
 every county twelve lawful men of each hundred, with four 
 lawful men from each township, should be sworn to present all 
 reputed criminals of their district in each County court. The 
 persons so presented were to be at once seized and sent to the 
 water ordeal. This was simply a reconstitution or revival, in 
 an expanded form, of the old English institution aiialogous to a 
 Grand Jury, which, as we have seen, had existed at least since 
 the time of King Ethelred II. 
 
 By the Articles of Visitation issued under Richard I. in 1194, 
 as instructions to the Itinerant Justices, the election and con- 
 stitution of the Jury of Presentment established by Henry II. 
 was further regulated, and assimilated to the system already in 
 use for nominating the recognitors of the Grand Assize. From 
 this developed Jury of Presentment our present Grand Jury has 
 historically descended. 
 
 The establishment of this system of combined presentment 
 and ordeal had the effect of abolishing, in all criminal cases, 
 the ancient practice of compurgation by the oath of friends, 
 the "manifest fountain of unblushing perjury." 
 
 In the year 1215 the ordeal was abolished throughout 
 Christendom by the fourth Lateran Council, and there remained 
 only, for criminal trials in England, the Grand Jury and the 
 Combat. But the Combat was not applicable unless an injured 
 prosecutor, or " appellant," came forward to demand it; and as 
 the Grand Jury was found inadequate to secure perfect justice, 
 the practice (which had been introduced even before the aboli- 
 tion of ordeal) gradually grew up of allowing a second, or 
 Petit Jury to affirm, or traverse, the testimony of the first set 
 of inquest men. This became the general usage in the reign of 
 
62 LEGAL FORMS AND JURY TRIALS [Ch. V 
 
 Henry III. Still for a long time no prisoner was compellable 
 to plead, that is, lie might refuse to be tried by the jury: but in 
 this case he was remanded to prison, and from the date of the 
 Statute of Westminster I. (3 Edward I.) was liable to the bar- 
 barous punishment called peine forte et dure, which was only 
 abolished so late as the reign of George III. 
 
 It is important to bear in mind that in Trial by Jury as per- 
 manently established, both in Civil and Criminal Cases, by 
 Henry II. , the function of the Jury long continued very differ- 
 ent from that of the modern tribunal. The jurymen were still 
 mere recognitors, deciding simply on their own knowledge or 
 from tradition, and not upon evidence produced before them; 
 and it was for this reason that they were always selected from 
 the hundred or vicinage in which the question arose. 
 
 The later development, common to the Civil and Criminal 
 Jury alike, by which the jurors gradually changed from witnesses 
 into judges of fact, the proof of which rested exclusively on the 
 evidence of others, has now to be considered. The number of 
 the recognitors was at first undefined, but when GManvill wrote, 
 under Henry II., twelve appears to have been the usual, though 
 not the invariable, number mentioned in the King's writs. 
 We have seen that it was necessary that twelve jurymen should 
 concur in their verdict, and this result, in Civil cases at least, 
 was procured by " afforcing " the jury, that is, adding other 
 recognitors from the vicinage who were acquainted with the 
 matter. But the difficulty of procuring a verdict of twelve, 
 caused for a time the verdict of a majority to be received. In 
 the reign of Edwai'd III., however, the necessity for a unani- 
 mous verdict of twelve was re-established. 
 
 Under Henry III., special witnesses (such as the witnesses 
 to a deed) were sometimes summoned together with, and formed 
 part of, the Jury. 
 
 In the Year Books of 23rd Edward III. mention is made of 
 witnesses being adjoined to the Jury to give them their testi- 
 mony, but without having any voice in the verdict. This is 
 the first indication of the Jury deciding on evidence formally 
 produced in addition to their own knowledge, and forms the 
 connecting link hetiveen the ancient and the modern Jury. 
 
 Early in the reign of Henry IV, a further advance was made. 
 
1765-1894] CRITICAL COMMENT 63 
 
 All evidence was required to be given at the bar of the court, 
 so that the Judges might be enabled to exclude improper 
 testimony. 
 
 From this change flowed two important consequences: (1) 
 From the exercise of control on the part of the Judges sprang 
 up the whole systems of rules as to evidence. (2) The practice 
 of receiving evidence openly at the bar of the Court produced a 
 great extension of the duty of an advocate. Henceforward 
 '•witnesses were examined and cross-examined in open court; 
 the floodgates of forensic eloquence were opened, and full 
 scope given to the advocate to exercise his ingenuity and 
 power of persuasion on the jurors, to whose discretion the 
 power of judging on matters of fact were now intrusted." 
 
 In the treatise of Chief Justice Fortescue, " De Laudibus 
 Legum Anglise," written soon after the year 1450, we have clear 
 evidence that the mode of procedure before juries by viv^ voce 
 evidence was the same as at present. 
 
 But Juries were still for a long time entitled to rely on their 
 own knowledge in addition to the evidence. In the first year 
 of Queen Anne, the Court of Queen's Bench decided that if a 
 Jury gave a verdict of their own knowledge, they ought so to 
 inform the Court, that they might be sworn as witnesses. This, 
 and a subsequent case in the reign of George I., at length put 
 an end to all remains of the ancient functions of Juries as 
 Recognitors. 
 
 In the same way the ancient rule requiring jurors to be 
 returned from the vicinage or hundred, which arose when jury- 
 men were themselves the witnesses, was, after various modifica- 
 tions, abolished in all Civil actions in the reign of George II., 
 and it was directed that juries should be summoned from the 
 body of the county. 
 
 T. P. Taswell-Langmead, English Constitutional History. 136-141. 
 HAKNIS TAYLOR (1889) 
 
 No attempt to outline the form which the English constitu- 
 tional system assumed during the fourteenth and fifteenth 
 centuries should fail to embrace some allusion to the accounts 
 given of that system by Sir John Fortescue, the great Lan- 
 castrian lawyer, who attended Queen Margaret in her exile 
 
64 LEGAL FORMS AND JURY TRIALS [Ch. V 
 
 on the Continent, where he seems to have undertaken, for a 
 time at least, the political edacation of the heir-apparent. 
 From the De Laudibus Legum Angiiae, which was designed 
 to instruct the prince how he should rule over the English; 
 from the De Dominio Regali et Politico, a Treatise on Abso- 
 lute and Limited Monarchy, and in particular on the Monarchy 
 of England ; and from the De Natura Legis Naturae, it is 
 possible to draw something like a definite idea of the extent 
 to which the English kingship had become limited towards the 
 end of the fifteenth century by the growth of the parliament 
 on the one hand, and by growth of the system of legal admin- 
 istration on the other. Under the influence of mediaeval poli- 
 tical ideas, the writer divides all governments into three 
 classes; the first of which he describes as regal government 
 (dominium regale), the second as political government (dom- 
 inium politicum), and the third as government of a mixed 
 nature, regal and political (dominium regale et politicum). 
 To the third class England belongs. . . . 
 
 In England the king " cannot by himself or his ministers 
 lay taxes, subsidies, or any imposition of w'hat kind soever, 
 upon the subject ; he cannot alter the laws, or make new ones, 
 without the express consent of the whole kingdom in parlia- 
 ment assembled." Sir John, who had been chief justice of 
 the king's bench, while explaining how the liberties of the 
 nation as a whole were protected by the parliamentary system, 
 did not forget to point out how the life, liberty, and property 
 of the individual subject were guarded by the system of legal 
 administration. In the account given of the provisions made 
 for the local administration of justice, a careful statement is 
 contained of the procedure in jury trials both in civil and 
 criminal cases. In a civil case the issue is tried by an im- 
 partial jury taken from the neighbourhood ; in a capital case 
 the jury is not only selected impartially from the neighbour- 
 hood, but the defendant is given a large number of challenges, 
 for which he need assign no cause or reason. "In a prose- 
 cution carried on in this manner there is nothing cruel, nothing 
 inhuman ; an innocent person cannot suffer in life or limb ; 
 he has no reason to dread the prejudice or calumny of his 
 enemies; he will not, can not, be put to the rack to gratify 
 
1765-1894] CRITICAL COMMENT Qb 
 
 their will and pleasure. In such a constitution, under such 
 laws, every man may live safely and securely." 
 
 Thus by the middle of the fifteenth century the personal 
 and political rights of the English people, which had long 
 before been defined in statutes and charters, were perman- 
 ently and practically guaranteed to the nation as a whole 
 by the parliamentary system on the one hand and to the in- 
 dividual subject by the jury system on the other. 
 
 Hannis Taylor, Origin and Growth of the English Constitution. I. 560-562. 
 STEVENS (1894) 
 
 And later on, jurors without information were separated 
 from those possessing it, the former becomiug judges of evi- 
 dence only, and the latter witnesses ; a decision being given 
 by the former upon the testimony of the latter, and the law 
 in the case being decided by the presiding official in the king's 
 name. By 1450 we have distinct evidence that the mode of 
 procedure was the same as that in modern use, though in 
 occasional instances the ancient functions of jurors lingered 
 as late as to the accession of the House of Hanover. 
 
 C. E. Stevens, Sources of the Constitution of the United States. 237. 
 
66 PETITION OF RIGHT [Ch. VI 
 
 Chaptee VI 
 PETITION OP RIGHT (1628) 
 
 SUGGESTIONS 
 
 This document — Petition of Right — was the result of the struggle 
 between King Charles I. and the members of Parliament. A Com- 
 mittee of Grievances, members of the third Parliament (March to 
 June, 1828), met together to consider what steps should be taken to 
 restore ancient laws and liberties. For two months the attention of 
 both Houses, either in conference or in separate debate, was almost 
 exclusively devoted to this important subject. 
 
 The King attempted to satisfy the House of Commons by a simple 
 confirmation of Magna Charta, but Sir Edward Coke warned the 
 House to proceed by Bill. In fact the far-famed Petition may be 
 said to have thriven under the especial tutelage of Sir Edward Coke: 
 the part assigned to him was the application of reasons for the laws 
 and precedents which had been quoted in favour of the contentions of 
 Parliament. When Charles I. suggested confirming Magna Charta 
 without additions, paragraphs, or explanations, Coke said — " Let us 
 put up a Petition of Right : not that I distrust the King, but that I 
 cannot take his trust but in a parliamentary way." 
 
 The Petition of Right was then drawn up by the Commons. After 
 much discussion on the part of both the House of Lords and the 
 House of Commons the petition was passed without any material 
 alteration. On the 2nd of June, 1628, the King attended in the 
 House of Lords to give his answer to the Bill. To the great surprise 
 of Peers and Commoners, the King returned a long and equivocal 
 answer, amounting almost to a refusal to pass the Bill. The Com- 
 mons gave vent to their ill-humour by impeaching Dr. Main waring, 
 one of the Royal Councillors, and were proceeding to censure the 
 favourite, Buckingham, when, on June 7th, the King signed the great 
 contract in the usual form. 
 
 This great constitutional compact between the Ci'own and the 
 People demands peculiar investigation. The documents earlier cited 
 have had no masterful personality standing behind them. The his- 
 tory of this document is closely connected with the heroes of the 
 Puritan era, and the personal preferences and legal theories of Pym, 
 
1628] TEXT 67 
 
 Hampden, Sir John Eliot, and Sir Edward Coke are expressed in 
 almost every word in the petition. The close connection between the 
 British subject at home and in the colonies, even at this early period 
 in colonial history, should be taken into consideration. The dominant 
 spirit of " redress," as emphatically expressed in 1628, was the corner- 
 stone of all later petitions addressed to royal authority. 
 For Outlines and Material, see Appendix A. 
 
 DOCUMENT 
 Petition of Right (June 7, 1628) 
 
 The Petition exhibited to his Majesty by the Lords The Statutes 
 
 Spiritual and Temporal, and Commons, in this ^f^j^^^f^^"^^ 
 
 present Parliament assembled, concerning divers translated 
 
 Rights and Liberties of the Subjects, with the by William 
 
 King's Majesty's royal ansioer thereunto in full g^g^^ ^char- 
 
 Parliament. ters, 505-507. 
 
 To THE King's Most Excellent Majesty, Famous 
 
 Humbly show unto our Sovereign Lord the King, j^gnt when' 
 
 the Lords Spiritual and Temporal, and Commons in Charles I. is 
 
 Parliament assembled, that whereas it is declared g^^j^'^fj^*^ 
 
 and enacted by a statute made in the time of the " Petition of 
 
 reign of King Edward L, commonly called Statutum Right." 
 
 de Tallaqio non concedendo, that no tallage or aid ''Declara- 
 
 ,,111.-, •■ . -. 1 , 1 . 1 • 1 • • tory statute" 
 
 shall be laid or levied by the king or his heirs m declaring 
 
 this realm, without the good will and assent of the former acts 
 
 archbishops, bishops, earls, barons, knights, bur- * 
 
 gesses, and other the freemen of the commonalty of "statute" 
 
 this realm ; and by authority of parliament holden has been 
 
 in the five-and-twentieth year of the reign of King ^^^pradium 
 
 Edward III., it is declared and enacted, that from of Confirma- 
 
 thenceforth no person shall be compelled to make ^^^ Charta- 
 
 rum. 
 any loans to the king against his will, because such 
 
 loans were against reason and the franchise of the 
 land ; and by other laws of this realm it is provided, 
 that none should be charged by any charge or impo- 
 sition, called a benevolence, nor by such like charge ; 
 by which the statutes before mentioned, and other 
 the good laws and statutes of this realm, your sub- 
 jects have inherited this freedom, that they should 
 
68 
 
 PETITION OF RIGHT 
 
 [Ch. VI 
 
 "Benevo- 
 lences " first 
 enacted in 
 the reign of 
 Edward IV. 
 (1473) : tliey 
 were analo- 
 gous to 
 forced loans 
 in preceding 
 reigns. 
 
 Magna 
 Charta's 
 Habeas 
 Corpus. 
 
 This statute, 
 ' ' liberty of 
 the subject," 
 grew out of 
 Magna 
 Charta, Art. 
 xxxix. 
 
 not be compelled to contribute to any tax, tallage, 
 aid, or other like charge not set by common consent, 
 in parliament : 
 
 II. Yet nevertheless of late divers commissions 
 directed to sundry commissioners in several counties, 
 with instructions, have issued ; by means whereof 
 your people have been in divers places assembled, 
 and required to lend certain sums of money unto 
 your Majesty, and many of them, upon their refusal 
 so to do, have had an oath administered unto them 
 not warrantable by the laws or statutes of this realm, 
 and have been constrained to become bound and 
 make appearance and give utterance before your 
 Privy Council, and in other places, and others of 
 them have been therefore imprisoned, confined, and 
 sundry other ways molested and disquieted ; and 
 divers other charges have been laid and levied 
 upon your people in several counties by lord lieu- 
 tenants, deputy lieutenants, commissioners for mus- 
 ters, justices of peace and others, by command or 
 direction from your Majesty or your Privy Council, 
 against the laws and free customs of the realm. 
 
 III. And whereas also by the statute called " The 
 Great Charter of the liberties of England," it is 
 declared and enacted that no freeman may be taken 
 or imprisoned or be disseised of his freeholds or 
 liberties, or his free customs, or be outlawed or 
 exiled, or in any manner destroyed, but by the 
 lawful judgment of his peers, or by the law of the 
 land. 
 
 IV. And in the eight-aud-twentieth year of the 
 reign of King Edward III., it was declared and 
 enacted by authority of parliament, that no man, 
 of what estate or condition that he be, should be 
 put out of his lands or tenements, nor taken, nor 
 imprisoned, nor disherited, nor put to death without 
 being brought to answer by due process of law. 
 
 V. Nevertheless, against the tenor of the said 
 statutes, and other the good laws and statutes of 
 
1628] TEXT 69 
 
 your realm to that end provided, divers of your 
 subjects have of late been imprisoned without any 
 cause showed ; and when for their deliverance they 
 were brought before your justices, by your Majesty's 
 writs of habeas corpus, there to undergo and receive These sub- 
 as the court should order, and their keepers com- ^^^*® ^®''® 
 ' ^ also mem- 
 
 manded to certify the causes of their detainer, no bers of Par- 
 cause was certified, but that they were detained by hament, 
 
 iDiT)risoiiG(l 
 your Majesty's special command, signified by the for utter- 
 lords of your Privy Council, and yet were returned ances on the 
 back to several prisons, without being charged with HoJge ^f^ 
 anything to which they might make answer accord- Commons, 
 ing to the law. 
 
 VI. And whereas of late great companies of sol- 
 diers and mariners have been dispersed into divers . 
 counties of the realm, and the inhabitants against djers and 
 their wills have been compelled to receive them into marhiers 
 their houses, and there to suffer them to sojourn oniVin\,he 
 against the laws and customs of this realm, and to time of war. 
 the great grievance and vexation of the people : 
 
 VII. And whereas also by authority of parlia- 
 ment, in the five-and-twentieth year of the reign of 
 King Edward III., it is declared and enacted, that 
 no man shall be forejudged of life or limb against 
 the form of the Great Charter and the law of the 
 land ; and by the said G-reat Charter, and other the 
 laws and statutes of this your realm, no man ought 
 to be adjudged to death but by the laws established 
 in this your realm, either by the customs of the 
 same realm or by acts of parliament: and whereas 
 no offender of what kind soever is exempted from 
 the proceedings to be used, and punishments to be 
 inflicted by the laws and statutes of this your realm : 
 nevertheless of late time divers commissions under 
 your Majesty's great seal have issued forth, by 
 which certain persons have been assigned and 
 appointed commissioners with power and authority 
 
 to proceed within the land, according to the justice -^^^as contrary 
 of martial law, against such soldiers or mariners, or to statute 25 
 
70 PETITION OF RIGHT [Ch. VI 
 
 Edward other dissolute persons ioininaf with them, as should 
 
 III 'S IT J O ' 
 
 thouf^h commit any murder, robbery, felony, mutiny, or 
 
 Elizabeth other outrage or misdemeanour whatsoever, and by 
 
 and Charles gQ^jj summary course and order as is affreeable to 
 I. did not '^ . . . ^ „ 
 
 hesitate to martial law, and as is used m armies m time of war, 
 
 apply martial to proceed to the trial and condemnation of such 
 
 ians in times offenders, and them to cause to be executed and 
 
 of peace. put to death according to the law martial. 
 
 VIII. By pretext whereof some of your Majesty's 
 subjects have been by some of the said commission- 
 ers put to death, when and where, if by the laws 
 and statutes of the laud they had deserved death, 
 by the same laws and statutes also they might, and 
 by no other ought to have been, judged and 
 executed. 
 
 IX. And also sundry grievous offenders, by 
 colour thereof claiming an exemption, have escaped 
 the punishments due to them by the laws and stat- 
 utes of this your realm, by reason that divers of 
 your officers and ministers of justice have unjustly 
 refused or forborne to proceed against such offend- 
 ers according to the same laws and statutes, upon 
 pretence that the said offenders were punishable 
 only by martial law, and by authority of such com- 
 missions as aforesaid ; which commissions, and all 
 other of like nature, are wholly and directly contrary 
 to the said laws and statutes of this your realm. 
 
 X. They do therefore humbly pray your most 
 excellent Majesty, that no man hereafter be com- 
 pelled to make or yield any gift, loan, benevolence, 
 tax, or such like charge, without common consent 
 by act of parliament ; and that none be called to 
 make answer, or take such oath, or to give attend- 
 ance, or be confined, or otherwise molested or dis- 
 quieted concerning the same or for refusal thereof ; 
 and that no freeman, in any such manner as is before 
 mentioned, be imprisoned or detained ; and that 
 your Majesty would be pleased to remove the said 
 soldiers and mariners, and that your people may not 
 
1628] TEXT 71 
 
 be so burdened iu time to come ; and that the fore- 
 said commissions, for proceeding by martial law, 
 may be revoked and annulled ; and that hereafter 
 no commissions of like nature may issue forth to 
 any person or persons whatsoever to be executed as 
 aforesaid, lest by colour of them any of your 
 Majesty's subjects be destroyed or put to death 
 contrary to the laws and franchise of the land. 
 
 XI. All which they most humbly pray of your 
 most excellent Majesty as their rights and liberties, 
 according to the laws and statutes of this realm ; 
 and that your Majesty would also vouchsafe to 
 declare, that the awards, doings, and proceedings, 
 to the prejudice of your people in any of the prem- 
 ises, shall not be drawn hereafter into consequence 
 or example ; and that your Majesty would be also 
 graciously pleased, for the further comfort and 
 safety of your people, to declare your royal will and 
 pleasure, that in the things aforesaid all your offi- 
 cers and ministers shall sei've you according to the 
 laws and statutes of this realm, as they tender the 
 honour of your Majesty, and the prosperity of this 
 kingdom. 
 
 [Which Petition being read the 2nd of June, 1628, 
 the king's answer was thus delivered unto it. 
 
 The King willeth that right be done according to 
 the laws and customs of the realm ; and that the 
 statutes be put in due execution, that his subjects 
 may have no cause to complain of any wrong or 
 oppressions, contrary to their just rights and liber- 
 ties, to the preservation whereof he holds himself as 
 well obliged as of his prerogative. 
 
 This form was unusual and was therefore thought 
 
 to be an evasion : therefore on June 7 the kino- orave 
 
 a second answer in the formula usual for approving; ^°^* ^^^^* 
 vn o -A 1 -M j^ -^ -7 ^ T ■ ^ n t^it comme 
 
 Dills : cioit droit fait comme il est desire. j il est desire 
 
72 PETITION OF RIGHT [Ch. VI 
 
 CONTEMPORARY EXPOSITION 
 
 CHARLES FIRST (162S) 
 
 The profession of both Houses, in time of hammering this 
 
 petition, was no ways to entrench upon my prerogative, saying 
 
 they had neither intention or power to hurt it; therefore it 
 
 must needs be conceived I granted no new, but only confirmed 
 
 the ancient liberties of my subjects, yet to show the clearness 
 
 of my intentions, that I have neither repented nor mean to recede 
 
 from anything I have promised you, I do here declare that those 
 
 things which have been done whereby men had some cause to 
 
 suspect the liberty of the subjects to be entrenched upon — 
 
 which indeed was the first and true ground of the petition — 
 
 shall not hereafter be drawn into example for your prejudice ; 
 
 and in time to come, in the word of a king, you shall not have 
 
 the like cause to complain. 
 
 Charles First's Speech at Prorogation of Parliament, June 26th, 
 1628, Parliamentary History. 
 
 CRITICAL COMMENT 
 
 HALLAM (1827) 
 
 The principal matters of complaint taken up by the Commons 
 in this session (Parliament, 1628) were, the exaction of money 
 under the name of loans ; the commitment of those who refused 
 compliance, and the late decision of the king's bench remand- 
 ing them a habeas corpus ; the billeting of soldiers on private 
 persons, which had occurred in the last years, whether for con- 
 venience or for purposes of intimidation and annoyance; and 
 the commissions to try military offenders by martial law. . . . 
 These four grievances or abuses form the foundation of the 
 Petition of Right. 
 
 Henry Hallam, Constitutional History of England, VII. 286. 
 
 NUGENT (1831) 
 
 The government went on, oppressing at home, and blun- 
 dering in all its measures abroad. A war was foolishly 
 undertaken against France, and more foolishly conducted. 
 Buckingham led an expedition against Rhe, and failed ignomin- 
 
1827-1S90] CRITICAL COMMENT 73 
 
 iously. Ill the meantime, soldiers were billeted on the people. 
 Crimes, of which ordinary justice should have taken cognizance, 
 were punished by martial law. Nearly eighty gentlemen were 
 imprisoned for refusing to contribute to the forced loan. The 
 lower people, who showed any signs of insubordination, were 
 pressed into the fleet or compelled to serve in the army. Money, 
 however, came in slowly ; and the king was compelled to sum- 
 mon another Parliament. In the hope of conciliating his sub- 
 jects, he set at liberty the persons who had been imprisoned 
 for refusing to comply with his unlawful demands. Hampden 
 regained his freedom ; and was immediately re-elected burgess 
 for Wendover. 
 
 Early in 1628 the Parliament met. During its first session, 
 the Commons prevailed on the king, after many delays and 
 much equivocation, to give, in return for five subsidies, his full 
 and solemn assent to that celebrated instrument — the second 
 great charter of the liberties of England — known by the name 
 of the Petition of Right. By agreeing to this act, the king 
 bound himself to raise no taxes without the consent of Parlia- 
 ment, to imprison no man except by legal process, to billet no 
 more soldiers on the people, and to leave the cognizance of 
 offences to the ordinarj^ tribunals. 
 
 In the summer this memorable Parliament was prorogued. 
 It met again in January, 1629. 
 
 Buckingham was no more. That weak, violent, and dissolute 
 adventurer, who, with no talents or acquirements but those of 
 a mere courtier, had, in a great crisis of foreign and domestic 
 politics, ventured on the part of prime minister, had fallen dur- 
 ing the recess of Parliament, by the hand of an assassin. Both 
 before and after his death, the war had been feebly and 
 unsuccessfully conducted. The king had continued, in direct 
 violation of the Petition of Right, to raise tonnage and pound- 
 age, without the consent of Parliament. The troops had again 
 been billeted on the people ; and it was clear to the Commons 
 that the five subsidies which they had given, as the price of 
 the national liberties, had been given in vain. 
 
 Lord Ndgent, Memorials of Hampden in Edinburgh Revieio. LIV. 516-517. 
 
74 PETITION OF RIGHT [Ch. VI 
 
 MAC AULA Y (1849) 
 
 The king called a third Parliament, and soon perceived that 
 the opposition was stronger and fiercer than ever. He now 
 determined on a change of tactics. Instead of opposing an 
 inflexible resistance to the demands of the Commons, he, after 
 much altercation and many evasions, agreed to a compromise 
 which, if he had faithfully adhered to it, would have averted a 
 long series of calamities. The parliament granted an ample 
 supply. The king ratified, in the most solemn manner, that 
 celebrated law which is known by the name of the Petition of 
 Right, and which is the second great charter of the liberties of 
 England. By ratifying that law, he bound himself never again 
 to raise money without the consent of the Houses, never again 
 to imprison any person, except in due coui'se of law, and never 
 again to subject his people to the jurisdiction of courts martial. 
 
 The day on which the ro^'-al sanction was, after many delays, 
 solemnly given to this great act, was a day of joy and hope. 
 The Commons, who crowded the bar of the House of Lords, 
 broke forth into loud acclamations as soon as the clerk had 
 pronounced the ancient form of words by which our princes 
 have, during many ages, signified their assent to the wishes of 
 the estates of the realm. Those acclamations were re-echoed by 
 the voice of the capital and of the nation ; but, within three 
 weeks, it became manifest that Charles had no intention of 
 observing the compact into which he had entered. The supply 
 given by the representatives of the nation was collected. The 
 promise by which that supply had been obtained was broken. 
 A violent contest followed. The parliament was dissolved 
 with every mark of royal displeasure. 
 
 Thomas Babington Macaulay, History of England. I. 66. 
 CREASY (1859) 
 
 On the 2nd of June, a.d. 1628, the peers were assembled, 
 the Commons summoned, and the king appeared in the House 
 of Lords to give his answer in Parliament to the bill. But, to 
 the surprise of all men, Charles, instead of using the well- 
 known ancient form of words by which such a bill receives the 
 royal assent, addressed the Parliament and told them, "the 
 
1827-1890] CRITICAL COMMENT 75 
 
 king willeth that right be done according to the laws and 
 customs of the realm, and that the statutes be put in due 
 execution, that his subjects may have no cause to complain of 
 any wrong or oppression contrary to their just rights and 
 liberties ; to the preservation whereof he holds himself in con- 
 science as well obliged, as of his prerogative." 
 
 The Commons returned highly incensed with this evasive 
 circumlocution. They forthwith began to assail the favourites 
 of the Crown, and impeached a Dr. Mainwaring who had 
 preached a sermon, which had afterwards been printed by the 
 king's command, in which discourse the right divine of kings 
 to deal as they pleased with their subjects' property on emei'- 
 gencies, whether parliament consented or not, and the duty of 
 passive obedience in the subject, were only and unreservedly 
 maintained. The Commons procured the trial and condemna- 
 tion of this satellite of arbitrary power, and wei'e proceeding 
 to assail others higher in Charles's councils, when the king's 
 obstinacy at length gave way, and the Petition of Right 
 received the royal assent in the customary form of Norman 
 French, and this second great solemn declaration of the liberties 
 of Englishmen was declared to be the law of the land, amidst 
 the general rejoicings of the nation. 
 
 E. S. Creasy, Rise and Progress of the English Constitution. 259. 
 HANNIS TAYLOE (1SS9) 
 
 Side by side with Eliot, Coke, and Phelips now stood Sir 
 Thomas Wentworth, who did yeoman's service in the popular 
 cause in a great oration in which, after reviewing all the questions 
 in controversy, except those involving the subject of religion, he 
 demanded that there should be no more forced loans, no more 
 illegal imprisonments, no more compulsory employments abroad, 
 no billeting of soldiers without the assent of the householder, — 
 thus outlining the substance of the great statute, afterwards 
 known as the Petition of Right, which derived its form from 
 Coke. 
 
 Hannis Tatlor, Origin and Growth of the English Constitution. II. 268. 
 
76 PETITION OF RIGHT [Ch. VI 
 
 RUDOLF VON G-NEIST (1889) 
 
 The Petition of Right is treated in later Constitutional State 
 Law as a third Magna Charta, because by it a whole series of 
 glaring administrative abuses are declared illegal in the most 
 unequivocal terms. 
 
 Rudolf von Gneist, History of the English Parliament. 253. 
 GARDINER (1889) 
 
 The Petition of Right is memorable as the first statutory 
 restriction of the powers of the Crown since the accession of 
 the Tudor dynasty. Yet, though the principles laid down in 
 it had the widest possible bearing, its remedies were not 
 intended to apply to all questions which had arisen or might 
 arise between the Crown and the Parliament, but merely to 
 those which had arisen since Charles's accession. Parliament 
 had waived, for the present at least, the consideration of Buck- 
 ingham's misconduct. It had also waived the consideration of 
 the question of Impositions. 
 
 The motives of the Commons in keeping silence on the Im- 
 positions were probably twofold. In the first place, they pro- 
 bably wished to deal separately with the new grievances, 
 because in dealing with them they would restrain the King's 
 power to make war without Parliamentary consent. In the 
 second place, they had a Tonnage and Poundage Bill before 
 them. Such a Bill had been introduced into each of the pre- 
 ceding Parliaments, but in each case an early dissolution had 
 hindered its consideration, and the long debates on the Petition 
 of Right now made it impossible to proceed farther with it in 
 the existing session. Yet, for three years the King had been 
 collecting Tonnage and Poundage, just as he collected the 
 Impositions, that is to say, as if he had no need of a Parlia- 
 mentary grant. The Commons therefore proposed to save the 
 right of Parliament by voting Tonnage and Poundage for a 
 single year, and to discuss the matter at length the following 
 session. When the King refused to accept this compromise 
 they had some difficulty in choosing a counter-move. They 
 were precluded from any argument from ancient statute and 
 precedent, because the judges in Bates's case had laid down 
 
1827-1890] CRITICAL COMMENT 77 
 
 the law against them, and they therefore had recourse to the 
 bold assertion that the Petition of Right had settled the ques- 
 tion in their favour. Charles answered by proroguing Parlia- 
 ment, and took occasion in so doing to repudiate the doctrine 
 which they advanced. 
 
 Samuel R. Gardinek, The Constitutional Documents of the Puritan Revolu. 
 tion. xxiii.-sxiv. 
 
 J. K. HOSMER (1890) 
 
 At first, feeble and fitful, the opposition gathered force, 
 developing under Charles I. into a stern battle between King 
 and that conservative element of the people who were deter- 
 mined to uphold the ancient ways. The King was forced by 
 the Petition of Right, in 1628, to admit that his arbitrary course 
 was wrong. It was a profession of the lips, not the heart. 
 
 J. K. HosMEE, Anglo-Saxon Freedom. 107. 
 
78 ENGLISH WRITTEN CONSTITUTIONS [Ch. VII 
 
 Chapter VII 
 ENGLISH WRITTEN CONSTITUTIONS (1648-1653) 
 
 SUGGESTIONS 
 
 During the year 1647, Oliver Cromwell tried his best to come to an 
 understanding with King Charles T. A constitutional scheme known 
 as the Heads of the Proposals was drawn up by Ireton, and presented 
 in the name of the army to the King. The wisdom of the Proposals 
 was not accepted, and many of the agitators, finding that the king 
 grew more hostile to Oliver Cromwell andhis party, advanced a stiU 
 more democratic constitution known as the Agreement of the People. 
 This document was presented to Parliament, and an attempt to force 
 it upon the officers was made with threats of mutiny in the army if 
 not accepted. But the immediate action on the part of the King at 
 this time turned the thoughts of the agitators, as well as the whole 
 body of the army, from constitutional law to royal intelligence. The^ 
 army lost all patience with King and Parliament. The Agreement 
 of the People was set aside, and all thoughts were turned to the atten- 
 tion of the King. 
 
 The new Constitution devised by Lambert and embodied in the In- 
 strument of Government, was the document accepted by the council of 
 officers who succeeded the " Little Parliament " as a legislative power. 
 This council was driven by necessity to the step from which they had 
 shrunk before, that of convening a parliament on the reformed basis of 
 representation. The new Constitution was undoubtedly popular. The 
 " Instrument " was taken as the ground work of the new Constitu- 
 tion, and the Assembly proceeded at once to settle the Government on 
 a parliamentary basis, by discussing the document clause by clause. 
 
 The two documents here presented were neither of them operative, 
 but they are here inserted because they are early attempts to draw 
 up written constitutions for England, with limitations, checks, and 
 balances ; and because their underlying ideas were carried out in some 
 colonial charters and governments, and eventually reappeared in the 
 state and federal constitutions. 
 
 For Outlines and Material, see Appendix A, 
 
1648-1653] TEXT 79 
 
 DOCUMENTS 
 
 The Agreement of the People (1649) 
 
 An Agreement of the People of England, and the Transliter- , 
 Places therewith incorporated, for a secure and ^f^t^^^ 
 
 -r. 7 J- n • 7 -* "6 Farlia- 
 
 preseiit Peace, upon grounds oj common Jiight, mentanj His- 
 
 Freedom, and Safety. tory of Eng- 
 
 land. (Han- 
 Having, by our late labours and hazards, made sard, 1808), 
 
 it appear to the world at how high a rate we value loTO 
 our just freedom ; and God having so far owned 
 our cause as to deliver the enemies thereof into our 
 hands, we do now hold ourselves bound, in mutual 
 duty to each other, to take the best care we can 
 for the future, to avoid both the danger of return- 
 ing into a slavish condition and the chargeable 
 remedy of another war : for as it cannot be ima- 
 gined that so many of our countrymen would have 
 opposed us in this quarrel if they had understood 
 their own good, so may we hopefully promise to 
 
 ourselves, that when our common riglits and liber- ^|^® spirit of 
 1 , . 7 -HIT liberty, car- 
 
 ties shall be cleared, then- endeavours will be dis- rjed even to 
 
 appointed that seek to make themselves our masters, the sword. 
 Since therefore our former oppressions and not-yet- 
 ended troubles have been occasioned either by 
 want of frequent national meetings in council, or 
 by the undue or unequal constitution thereof, or by Infrequency 
 rendering those meetings ineffectual, we are fully ^g^ts^beg^n 
 agreed and resolved, God willing, to provide, that in the Tudor 
 hereafter our Representatives be neither left to an ^^l^^^ ^^* 
 uncertainty for times nor be unequally constituted, amazingly in- 
 nor made useless to the ends for which they are creased dur- 
 ,,-.-77 J 71 1 mS reisrn of 
 
 intended. In order whereunto we declare and agree, jamesl. 
 
 First. That, to prevent the many inconveniences 
 apparently arising from the long continuance of 
 the same persons in supreme authority, this present 
 Parliament end and dissolve upon, or before, the 
 last day of April, 1649. 
 
 Secondly. That the people of England (being 
 
80 
 
 ENGLISH WRITTEN CONSTITUTIONS [Ch. VII 
 
 Note use of 
 word Eepre- 
 sentatives; 
 later adopted 
 by the Fed- 
 eral conven- 
 tion, 1787. 
 
 The list of 
 districts is 
 here omitted. 
 
 The Legis- 
 lative Body. 
 
 at this day very unequally distributed by counties, 
 cities, and boroughs, for the election of their Rep- 
 resentatives) be indifferently proportioned ; and, to 
 this end, that the Representative of the whole 
 nation shall consist of 400 persons, or not above ; 
 and in each county, and the places thereto sub- 
 joined, there shall be chosen, to make up the said 
 Representative at all times, the several numbers 
 here mentioned, viz.: . . . and, having first caused 
 this Agreement to be publicly read in the audience 
 of the people, shall proceed unto, and regulate and 
 keep peace and order in the elections; and, by 
 poll or otherwise, openly distinguish and judge of 
 the same; and thereof, by certificate or writing 
 under the hands and seals of himself, and six or 
 more of the electors, nominating the person or 
 persons duly elected, shall make a true return into 
 the Parliament Records within twenty-one days 
 after the election, under pain for default thereof, 
 or, for making any false return, to forfeit £100 
 to the public use ; and also cause indentures to be 
 made, and unchangeably sealed and delivered, be- 
 tween himself and six or more of the said electors, 
 on the one part, and the persons, or each person, 
 elected severally, on the other part, expressing 
 their election of him as a representer of them ac- 
 cording to this Agreement, and his acceptance of 
 that trust, and his promise accordingly to perform 
 the same with faithfulness, to the best of his un- 
 derstanding and ability, for the glory of God and 
 good of the people. This course is to hold for the 
 first Representative, which is to provide for tlie 
 ascertaining of these circumstances in order to 
 future representatives. 
 
 Fourthly. That 150 members at least be always 
 present in each sitting of the Representative, at 
 the passing of any law or doing of any act whereby 
 the people are to be bound ; saving, that the num- 
 ber of sixty may make a House for debates or 
 resolutions that are preparatoi-y thereunto. 
 
1648-1653] 
 
 TEXT 81 
 
 Fifthly. That each Representative shall, within 
 20 days after their first meeting, appoint a Council 
 of State for the managing of public affairs, until tive Body, 
 the 10th clay after the meeting of the next Represen- 
 tative, unless that next Representative think fit 
 to put an end to that trust sooner. And the same 
 Council to act and proceed therein, according to 
 such instructions and limitations as the Representa- 
 tive shall give, and not otherwise. 
 
 Sixthly. That in each interval between biennial 
 
 representatives, the Council of State, in case of Extra Ses- 
 
 , T . . . sions limited 
 
 immmeut danger or extreme necessity, may sum- ^^ extent of 
 
 mon a Representative to be forthwith chosen, and time, 
 to ineet ; so as the Session thereof continue not 
 above eighty dajj-s ; and so as it dissolve at least 
 fifty days before the appointed time for the next 
 biennial Representative ; and upon the fiftieth day 
 so preceding it shall dissolve of course, if not other- 
 wise dissolved sooner. 
 
 Seventhly. That no member of any Represen- Modern doc- 
 tative be made either receiver, treasurer, or other J^uon 0?*"'^^' 
 officer, during that employment, saving to be a powers, 
 member of the Council of State. 
 
 Eio-hthly. That the representatives have, and 
 shall be understood to have, the supreme trust in 
 order to the preservation and government of the 
 whole; and that their power extend, without the 
 consent or concurrence of any other person or per- 
 sons, to the erecting and abolishing of Courts of 
 Justice and public offices, and to the enacting, 
 altering, repealing and declaring of laws, and the 
 highest and final judgment, concerning all natural 
 or civil things, but not concerning things spiritual 
 or evangelical. Provided that, even in things na- Duties of the 
 tural and civil, these six particulars next following JJves defined 
 are, and shall be, understood to be excepted and respecting 
 reserved from our representatives, viz. 1. We do P^'^l^'^ ^^^i^^- 
 not empower them to impress or constrain any 
 person to serve in foreign war, either by sea or 
 
 6 
 
82 ENGLISH WRITTEN CONSTITUTIONS [Ch. VII 
 
 land, nor for any military service within the king- 
 dom ; save that they may take order for the form- 
 ing, training, and exercising of the people in a 
 military way, to be in readiness for resisting of 
 foreign invasions, suppressing of sudden insurrec- 
 tions, or for assisting in execution of the laws ; 
 and may take order for the employing and con- 
 ducting of them for those ends ; provided that, 
 even in such cases, none be compellable to go out 
 of the county he lives in, if he procure another to 
 serve in his room. 2. That, after the time herein 
 limited for the commencement of the First Eepre- 
 sentative, none of the people may be at any time 
 questioned for an3'thing said or done in relation to 
 the late wars or public differences, otherwise than 
 in execution or pursuance of the determinations 
 of the present House of Commons, against such 
 as have adhered to the King, or his interest, against 
 the people ; and saving that accomptants for pub- 
 lic moneys received, shall remain accountable for 
 Perpetuity of the same. 3. That no securities given, or to be 
 the country's given, b}^ the public faith of the nation, nor any 
 " ' engagements of the public faith for satisfaction 
 
 of debts and damages, shall be made void or in- 
 valid by the next or any future Representatives ; 
 except to such creditors as have, or shall have, 
 justly forfeited the same : and saving, that the next 
 Representative may confirm or make null, in part 
 or in whole, all gifts of lands, moneys, offices, or 
 otherwise, made by the present Parliament to any 
 member or attendant of either House. 4. That, 
 in any laws hereafter to be made, no person, by 
 virtue of any tenure, grant, charter, patent, degree 
 or birth, shall be privileged from subjection there- 
 to, or from being bound thereby, as well as others. 
 Dignity of 5. That the Representative may not give judgment 
 Common upon any man's person or estate, where no law 
 hath before provided; some only in calling to ac- 
 count and punishing public officers for abusing or 
 
1648-1653] TEXT 83 
 
 failing in their trust. 6. That no Representative 
 may in any wise render up, or give, or take away, 
 any of the foundations of common right, liberty, 
 and safety contained in this Agreement, nor level 
 men's estates, destroy property, or make all things 
 common; and that, in all matters of such funda- 
 mental concernment, there shall be a liberty to 
 particular members of the said representatives to 
 enter their dissents from the major vote. 
 
 Ninthly. Concerning religion, we agree as fol- 
 loweth. 1. It is intended that the Christian Reli- Relation of 
 gion be held forth and recommended as the public ^ govern- 
 profession in this nation, which we desire may, by Christian 
 the grace of G-od, be reformed to the greatest purity Religion, 
 in doctrine, worship and discipline, according to 
 the "Word of God ; the instructing the people there- 
 unto in a public way, so it be not compulsive ; as 
 also the maintaining of able teachers for that end, 
 and for the confutation or discovering of heresy, 
 error, and whatsoever is contrary to sound doctrine, 
 is allowed to be provided for by our Representa- 
 tives ; the maintenance of which teachers may be 
 out of a public treasury, and, we desire, not by 
 tithes : provided, that Popery or Prelacy be not 
 held forth as the public way or profession in this 
 nation. 2. That, to the public profession so held 
 forth, none be compelled by penalties or otherwise ; 
 but only may be endeavoured to be won by sound 
 doctrine, and the example of a good conversation. 
 3. That such as profess faith in God by Jesus 
 Christ, however differing in judgment from the 
 doctrine, worship or discipline publicly held forth, 
 as aforesaid, shall not be restrained from, but shall 
 be protected in, the profession of their faith and 
 exercise of religion, according to their consciences, 
 in any place except such as shall be set apart for 
 the public worship ; where we provide not for them, 
 unless they have leave, so as they abuse not this 
 liberty to the civil injury of others, or to act- 
 
84 
 
 ENGLISH WRITTEN CONSTITUTIONS [Ch. VII 
 
 Exclusion of 
 Roman Cath- 
 olic church. 
 
 To prevent 
 
 military 
 
 despotism. 
 
 ual disturbance of the public peace on their parts. 
 Nevertheless, it is not intended to be hereby pro- 
 vided, that this liberty shall necessarily extend to 
 Popery or Prelacy. 4. That all laws, ordinances, 
 statutes, and clauses in any law, statute, or ordi- 
 nance to the contrary of the liberty herein provided 
 for, in the two particulars next preceding concern- 
 ing religion, be, and are hereby, repealed and made 
 void. 
 
 Tenthly. It is agreed, that whosoever shall, by 
 force of arms, resist the orders of the next or any 
 future Representative (except in ease where such 
 Representative shall evidently render up, or give, 
 or take away the foundations of common right, 
 liberty, and safety, contained in this Agreement), 
 he shall forthwith, after his or their such resistance, 
 lose the benefit and protection of the laws, and shall 
 be punishable with death, as an enemy and traitor to 
 the nation. Of the things expressed in this Agree- 
 ment : the certain ending of this Parliament, as in 
 the first Article ; the equal or proportionable distri- 
 bution of the number of the representers to be 
 elected, as in the second ; the certainty of the 
 people's meeting to elect for Representatives 
 biennial, and their freedom in elections ; with the 
 certainty of meeting, sitting and ending of Repre- 
 sentatives so elected, which are provided for in the 
 third Article ; as also the qualifications of persons 
 to elect or be elected, as in the first and second 
 particulars under the third Article ; also the cer- 
 tainty of a number for passing a law or preparatory 
 debates, provided for in the fourth Article; the 
 matter of the fifth Article, concerning the Council 
 of State, and of the sixth, concerning the calling, 
 sitting and ending of Representatives extraordinary; 
 also the power of Representatives to be, as in the 
 eighth Article, and limited, as in the six reserves 
 next following the same: likewise the second and 
 third Particulars under the ninth Article concerning 
 
1648-1653] TEXT 85 
 
 religion, aud the whole matter of the tenth Article ; 
 all these we do account and declare to be funda- 
 mental to our common right, liberty, and safety : 
 and therefore do both agree thereunto, and resolve 
 to maintain the same, as God shall enable us. 
 The rest of the matters in this Agreement we ac- 
 count to be useful and good for the public ; and the 
 particular circumstances of numbers, times, and 
 places, expressed in the several Articles, we account This docu- 
 
 not fundamental : but we find them necessarv to be ™6nt was 
 , ,^ ■ ^ n V, 1- , 1 completed on 
 
 here determined, lor the makmg the Agreement Jan. 15, 1649, 
 
 certain and practicable, and do hold these most ^^'^ P^'^- 
 
 convenient that are here set down ; and therefore Rump par- 
 
 do positively agree thereunto. By the appointment liament five 
 
 of his Excellency the Lord-General and his General ^^^^ ^^*^'^* 
 
 Council of Officers. 
 
 John Rushworth, Sec. 
 
 The Instrument of Government (1653) 
 
 The government of the Commonwealth of Eng- Translit.: 
 
 land, Scotland, and Ireland, and the dominions {j.^Ji, 
 ' ' ' Hist, of Eng. 
 
 thereunto belonging. (Hansard, 
 
 I. That the supreme legislative authority of the J^?^^'. JJJ* 
 
 Commonwealth of England, Scotland, and Ireland, . ^.^. ' . 
 =' ' ' ' An attempt 
 
 and the dominions thereunto belonging, shall be to establish 
 and reside in one Person, and the people assembled ^^ executive 
 
 on fi f*onsti— 
 
 in Parliament ; the style of which person shall be the tutional and 
 Lord Protector of the Commonwealth of England, not a military 
 Scotland, and Ireland. ^^^'®' 
 
 II. That the exercise of the chief Magistracy The council 
 
 and the administration of the government over the ^^®?'^^.^?'i, 
 
 == pointed by 
 
 said countries and dominions, and the people there- the Pro- 
 of, shall be in the Lord Protector, assisted with a tector, but 
 
 w6rG irrG- 
 council, the number whereof shall not exceed 21, movable by 
 
 nor be less than 13. him save by 
 
 III. That all writs, processes, commissions, ^.j^g ^^^^ ^^ 
 patents, grants, and other things, which now run in the members, 
 the name and style of the ' Keepers of the Liberty 
 
86 
 
 ENGLISH WRITTEN CONSTITUTIONS [Ch. VII 
 
 Commander- 
 in-chief of 
 army and 
 navy by con- 
 sent of 
 Council. 
 
 Interna- 
 tional rela- 
 tionship with 
 advice of 
 Council. 
 
 Note Com- 
 mon Law 
 and Magna 
 Charta. 
 
 Triennial 
 summons of 
 a single 
 chamber of 
 Parliament. 
 
 of England by Authority of Parliament,' shall run 
 in the name and style of the Lord Protector, from 
 whom, for the future, shall be derived all magistracy 
 and honours in these three nations ; and have the 
 power of pardons (except in case of murders and 
 treason) and benefit of all forfeitures for the public 
 use ; and shall govern the said countries and domin- 
 ions in all things by the advice of the council, and 
 according to these presents and the laws. 
 
 IV. That the Lord Protector, the Parliament sit- 
 ting, shall dispose and order the militia and forces, 
 both by sea and land, for the peace and good of the 
 three nations, by consent of Parliament ; and that 
 the Lord Protector, with the advice and consent of 
 the major part of the council, shall dispose and 
 order the militia for the ends aforesaid in the inter- 
 vals of Parliament. 
 
 V. That the Lord Protector, by the advice afore- 
 said, shall direct in all things concerning the keeping 
 and holding of a good correspondency with foreign 
 kings, princes, and states; and also, with the con- 
 sent of the major part of the council, have the 
 power of w^ar and peace. 
 
 VI. That the laws shall not be altered, suspended, 
 abrogated, or repealed, nor any new law made, nor 
 any tax, charge, or imposition laid upon the people, 
 but by common consent in Parliament, save only as 
 is expressed in the thirtieth article. 
 
 VII. That there shall be a Parliament summoned 
 to meet at Westminster upon the third day of Sep- 
 tember, 1654, and that successively a Parliament 
 shall be summoned once in every third year, to be 
 accounted from the dissolution of the present 
 Parliament. 
 
 VIII. That neither the Parliament to be next 
 summoned, nor any successive Parliaments, shall, 
 during the time of five months, to be accounted 
 from the day of their first meeting, be adjourned, 
 prorogued, or dissolved, without their own consent. 
 
1648-1653] TEXT 8T 
 
 IX. That as well the next as all other successive 
 Parliaments, shall be summoned and elected in 
 manner hereafter expressed; that is to say, the 
 persons to be chosen within England, Wales, the 
 Isles of Jersey, Guernsey, and the town of Berwick- 
 upon-Tweed, to sit and serve in Parliament, shall 
 be, and not exceed, the number of four hundred. 
 The persons to be chosen within Scotland, to sit 
 and serve in Parliament, shall be, and not exceed, 
 the number of thirty ; and the persons to be chosen 
 to sit in Parliament for Ireland shall be, and not 
 exceed, the number of thirty. 
 
 X. That the persons to be elected to sit in Parlia- 
 ment from time to time, for the several counties of 
 England, Wales, the Isles of Jersey and Guernsey, 
 and the town of Berwick-upon-Tweed, and all places 
 within the same respectively, shall be according to 
 the proportions and numbers hereafter expressed : 
 
 that is to say, . . . The list is 
 
 XL That the summons to Parliament shall be by The ordi- 
 
 writ under the Great Seal of England, directed to nances of 
 
 the sheriffs of the several and respective counties, ^ent are the 
 
 with such alteration as may suit with the present sole attempt, 
 
 government, to be made by the Lord Protector ^^J^^'j^^Jj;;;.^,^^ 
 
 and his council, which the Chancellor, Keeper, or at a general 
 
 Commissioners of the Great Seal shall seal, issue, reform of the 
 
 1 T T -r^ parliamen- 
 and send abroad by warrant from the Lord Pro- tary fran- 
 
 tector. If the Lord Protector shall not give warrant chise, until 
 for issuing of writs of summons for the next Parlia- Reform Bill 
 ment, before the first of June, 1654, or for the of 1832. 
 Triennial Parliaments, before the first day of August gee Sum- 
 in every third year, to be accounted as aforesaid ; mons to 
 
 Parliament 
 that then the Chancellor, Keeper, or Commissioners ci^ap. III. 
 
 of the Great Seal for the time being, shall, without 
 any warrant or direction, within seven days after 
 the said first day of June, 1654, seal, issue, and 
 send abroad writs of summons (changing therein 
 what is to be changed as aforesaid) to the several 
 and respective sheriffs of England, Scotland, and 
 
summoning. 
 
 88 ENGLISH WRITTEN CONSTITUTIONS [Ch. VII 
 
 Ireland, for summoning the Parliament to meet at 
 Westminster, the third day of September next; 
 and shall likewise, within seven days after the said 
 first day of August, in every third year, to be ac- 
 counted from the dissolution of the precedent Parlia- 
 ment, seal, issue, and send forth abroad several 
 writs of summons (changing therein what is to be 
 changed) as aforesaid, for summoning the Parlia- 
 ment to meet at Westminster the sixth of Novem- 
 Manner of her in that third year. That the said several and 
 respective sheriffs, shall, within ten days after the 
 receipt of such writ as aforesaid, cause the same to 
 be proclaimed and published in every market-town 
 within his county upon the market-days thereof, 
 between twelve and three of the clock; and shall 
 then also publish and declare the certain day of the 
 week and month, for choosing members to serve in 
 Parliament for the body of the said county, accord- 
 ing to the tenor of the said writ, which shall be 
 upon Wednesday five weeks after the date of the 
 writ; and shall likewise declare the place where the 
 election shall be made ; for which purpose he shall 
 appoint the most convenient place for the whole 
 county to meet in; and shall send precepts for 
 elections to be made in all and every city, town, 
 borough, or place within his county, where elections 
 are to be made by virtue of these presents, to the 
 Mayor, Sheriff, or other head officer of such city, 
 town, borough, or place, within three days after the 
 receipt of such writ and writs; which the said 
 Mayors, Sheriffs, and officers respectively are to 
 make publication of, and of the certain day for 
 such elections to be made in the said city, town, or 
 place aforesaid, and to cause elections to be 
 made accordingly. 
 
 XII. That at the day and place of elections, the 
 Sheriff of each countj^, and the said Mayors, Sheriffs, 
 Bailiffs, and other head officers within their cities, 
 towns, boroughs, and places respectively, shall take 
 
1648-1653] TEXT 89 
 
 %dew of the said elections, and shall make return 
 into the chancery within twenty days after the said 
 elections, of the persons elected by the greater 
 number of electors, under their hands and seals, 
 between him on the one part, and the electors on 
 the other part ; wherein shall be contained, that the 
 persons elected shall not have power to alter the 
 government as it is hereby settled in one single 
 person and a Parliament. 
 
 XIII. That the Sheriff, who shall wittingly and 
 willingly make any false return, or neglect his duty, punishment 
 shall incur the penalty of 2000 marks of lawful for illegal- 
 English money ; the one moiety to the Lord Pro- ^*'^®®" 
 tector, and the other moiety to such person as will 
 
 sue for the same. 
 
 XIV. That all and every person and persons, 
 
 who have aided, advised, assisted, or abetted in any Disloyalty in 
 war against the Parliament, since the first day of England. 
 January, 1641 (unless they have been since in the 
 service of the Parliament, and given signal testi- 
 mony of their good affection thereunto) shall be 
 disabled and incapable to be elected, or to give 
 any vote in the election of any members to serve in 
 the next Parliament, or in the three succeeding 
 Triennial Parliaments. 
 
 XV. That all such, who have advised, assisted, 
 
 or abetted the rebellion of Ireland, shall be disabled Disloyalty in 
 and incapable for ever to be elected, or give any Ireland, 
 vote in the election of any member to serve in Par- 
 liament ; as also all such who do or shall profess the Eoman Cath- 
 Roman Catholic religion. ol^c religion. 
 
 XVI. That all votes and elections given or made 
 contrary, or not according to these qualifications, 
 shall be null and void ; and if any person, who is 
 hereby made incapable, shall give his vote for elec- 
 tion of members to serve in Parliament, such person 
 shall lose and forfeit one full year's value of his real 
 estate, and one full third part of his personal estate ; 
 one moiety thereof to the Lord Protector, and the 
 
90 
 
 ENGLISH WRITTEN CONSTITUTIONS [Ch. VII 
 
 Eligibility 
 of represen- 
 tatives. 
 
 Electorate. 
 
 The Parlia- 
 ment gath- 
 ered together 
 in 1654 
 under the 
 mandate of 
 this frame of 
 government 
 brought to- 
 gether for 
 the first time 
 representa- 
 tives fx'om 
 England, 
 Scotland, and 
 Ireland, in 
 the form in 
 which they 
 sit to-day. 
 
 other moiety to him or them who shall sue for the 
 same. 
 
 XVII. That the persons who shall be elected to 
 serve in Parliament, shall be such (and no other 
 than such) as are persons of known integrity, fear- 
 ing God, and of good conversation, and being of 
 the age of twenty-one years. 
 
 XVIII. That all and every person and persons 
 seised or possessed to his own use, of any estate, 
 real or personal, to the value of £200, and not 
 within the aforesaid exceptions, shall be capable to 
 elect members to serve in Parliament for counties. 
 
 XIX. That the Chancellor, Keeper, or Commis- 
 sioners of the Great Seal, shall be sworn before 
 they enter into their offices, truly and faithfully to 
 issue forth, and send abroad, writs of summons to 
 Parliament, at the times and in the manner before 
 expressed : and in case of neglect or failure to issue 
 and send abroad writs accordingly, he or they shall 
 for every such offence be guilty of high treason, and 
 suffer the pains and penalties thereof. 
 
 XX. That in case writs be not issued out, as is 
 before expressed, but that there be a neglect therein, 
 fifteen days after the time wherein the same ought 
 to be issued out by the Chancellor, Keeper, or Com- 
 missioners of the Great Seal ; that then the Parlia- 
 ment shall, as often as such failure shall happen, 
 assemble and be held at Westminster, in the usual 
 place, at the times prefixed, in manner and by the 
 means hereafter expressed; that is to say, that 
 the sheriffs of the several and respective counties, 
 sheriffdoms, cities, boroughs, and places aforesaid, 
 within England, Wales, Scotland, and Ireland, the 
 Chancellor, Masters, and Scholars of the Univer- 
 sities of Oxford and Cambridge, and the Mayor and 
 Bailiffs of the borough of Berwick-upon-Tweed, and 
 other places aforesaid respectively, shall at the 
 several courts and places to be appointed as afore- 
 said, within thirty days after the said fifteen days, 
 
1648-1653] TEXT 91 
 
 cause such members to be chosen for their said 
 several and respective counties, sheriffdoms, univer- 
 sities, cities, boroughs, and places aforesaid, by such 
 persons, and in such manner, as if several and re- 
 spective writs of summons to Parliament under the 
 Great Seal had issued and been awarded according 
 to the tenor aforesaid : that if the sheriff, or other 
 persons authorized, shall neglect his or their duty 
 herein, that all and every such sheriff and person 
 authorized as aforesaid, so neglecting his or their 
 duty, shall, for every such offence, be guilty of high 
 treason, and shall suffer the pains and penalties 
 thereof. 
 
 XXI. That the clerk, called the clerk of the Com- Qualifica- 
 mon wealth in Chancery for the time being, and all ^^^"^ article, 
 others, who shall afterwards execute that office, to 
 
 whom the returns shall be made, shall for the next 
 Parliament, and the two succeeding Triennial Par- 
 liaments, the next day after such return, certify the 
 names of the several persons so returned, and of '' 
 
 the places for which he and they were chosen re- 
 spectively, unto the Council ; who shall peruse the 
 said returns, and examine whether the persons so 
 elected and returned be such as is agreeable to the 
 qualifications, and not disabled to be elected : and 
 that every person and persons being so duly elected, 
 and being approved of by the major part of the 
 Council to be persons not disabled, but qualified as 
 aforesaid, shall be esteemed a member of Parlia- 
 ment, and be admitted to sit in Parliament, and not 
 otherwise. 
 
 XXII. That the persons so chosen and assembled 
 in manner aforesaid, or any sixty of them, shall be, 
 and be deemed the Parliament of England, Scotland, 
 and Ireland ; and the supreme legislative power to 
 be and reside in the Lord Protector and such Par- 
 liament, in manner herein expressed. 
 
 XXIII. That the Lord Protector, with the advice 
 pf the major part of the Council, shall at any other 
 
92 
 
 ENGLISH WRITTEN CONSTITUTIONS [Ch. VII 
 
 The Protec- 
 tor's ordain- 
 ing power. 
 
 Prototype of 
 tlie Massa- 
 cliusetts Con- 
 stitution of 
 1780 and 
 Federal Con- 
 stitution of 
 1787. 
 
 Method of 
 
 choosing 
 
 Council. 
 
 time than is before expressed, when the necessities 
 of the State shall require it, summon Parliaments in 
 manner before expressed, which shall not be ad- 
 journed, prorogued, or dissolved without their own 
 consent, during the first three months of their sit- 
 ting. And in case of future war with any foreign 
 State, a Parliament shall be forthwith summoned for 
 their advice concerning the same. 
 
 XXIV. That all Bills agreed unto by the Parlia- 
 ment, shall be presented to the Lord Protector for 
 his consent ; and in case he shall not give his con- 
 sent thereto within twenty days after they shall be 
 presented to him, or give satisfaction to the Parlia- 
 ment within the time limited, that then, upon dec- 
 laration of the Parliament that the Lord Protector 
 hath not consented nor given satisfaction, such BUls 
 shall pass into and become laws, although he shall 
 not give his consent thereunto ; provided such Bills 
 contain nothing in them contrary to the matters 
 contained in these presents. 
 
 XXV. That Henry Lawrence, Esq., &c., or any 
 seven of them, shall be a Council for the purposes 
 expressed in this writing: and upon the death or 
 other removal of any of them, the Parliament shall 
 nominate six persons of ability, integrity, and 
 fearing God, for every one that is dead or removed ; 
 out of which the major part of the Council shall 
 elect two, and present them to the Lord Protector, 
 of which he shall elect one ; and in case the Parlia- 
 ment shall not nominate within twenty days after 
 notice given unto them thereof, the major part of 
 the Council shall nominate three as aforesaid to the 
 Lord Protector, who out of them shall supply the 
 vacancy ; and until this choice be made, the remain- 
 ing part of the Council shall execute as fully in all 
 things, as if their number were full. And in case 
 of corruption, or other miscarriage in any of the 
 Council in their trust, the Parliament shall appoint 
 seven of their number, and the Council six, who, 
 
1648-1653] TEXT 93 
 
 together with the Lord Chancellor, Lord Keeper, or 
 Commissioners of the Great Seal for the time being, 
 shall have power to hear and determine such 
 corruption and miscarriage, and to award and in- 
 flict punishment, as the nature of the offence shall 
 deserve, which punishment shall not be pardoned or 
 remitted by the Lord Protector; and, in the inter- 
 val of Parliaments, the major part of the Council, 
 with the consent of the Lord Protector, may, for 
 corruption or other miscarriage as aforesaid, sus- 
 pend any of their number from the exercise of their 
 trust, if they shall tind it just, until the matter shall 
 be heard and examined as aforesaid. 
 
 XXVI. That the Lord Protector and the major 
 part of the Council aforesaid may, at any time 
 before the meeting of the next Parliament, add to 
 the Council such persons as they shall think fit, 
 provided the number of the Council be not made 
 thereby to exceed twenty-one, and the quorum to be 
 proportioned accordingly by the Lord Protector and 
 the major part of the Council. 
 
 XXVII. That a constant yearly revenue shall be 
 
 raised, settled, and established for maintaining of The Protec- 
 10,000 horse and dragoons, and 20,000 foot, in borate sup- 
 England, Scotland and Ireland, for the defence and a military 
 security thereof, and also for a convenient number force, 
 of ships for guarding of the seas ; besides £200,000 
 per annum for defraying the other necessary charges 
 of administration of justice, and other expenses of 
 the G-overnment, which revenue shall be raised by 
 the customs, and such other ways and means as 
 shall be agreed upon by the Lord Protector and the 
 Council, and shall not be taken away or diminished, 
 nor the way agreed upon for raising the same 
 altered, but by the consent of the Lord Protector 
 and the Parliament. 
 
 XXVIII. That the said yearly revenue shall be System of 
 paid into the public treasury, and shall be issued auditors 
 out for the uses aforesaid. dates from 
 
94 
 
 ENGLISH WRITTEN CONSTITUTIONS [Ch. VII 
 
 Lessening 
 power of 
 the Army. 
 
 Control of 
 finances in 
 hands of 
 Parliament. 
 
 Forfeitures. 
 
 XXIX. Tliat in case there shall not be cause 
 hereafter to keep up so great a defence both at land 
 or sea, but that there be an abatement made thereof, 
 the money which will be saved thereby shall remain 
 in bank for the public service, and not be employed 
 to any other use but by consent of Parliament, or, 
 in the intervals of Parliament, by the Lord Protec- 
 tor and major part of the Council. 
 
 XXX. That the raising of money for defraying 
 the charge of the present extraordinary forces, 
 both at sea and land, in respect of the present wars, 
 shall be by consent of Parliament, and not other- 
 wise: save only that the Lord Protector, with the 
 consent of the major part of the Council, for pre- 
 venting the disorders and dangers which might 
 otherwise fall out both by sea and land, shall have 
 power, until the meeting of the first Parliament, to 
 raise money for the purposes aforesaid; and also 
 to make laws and ordinances for the peace and wel- 
 fare of these nations where it shall be necessary, 
 which shall be binding and in force, until order 
 shall be taken in Parliament concerning the 
 same. 
 
 XXXI. That the lands, tenements, rents, royal- 
 ties, jurisdictions and hereditaments which remain 
 yet unsold or undisposed of, by Act or Ordinance 
 of Parliament, belonging to the Commonwealth 
 (except the forests and chases, and the honours and 
 manors belonging to the same ; the lands of the 
 rebels in Ireland, lying in the four counties of 
 Dublin, Cork, Kildare, and Carlow; the lands 
 forfeited by the people of Scotland in the late wars, 
 and also the lands of Papists and delinquents in 
 England who have not yet compounded), shall be 
 vested in the Lord Protector, to hold, to him and 
 his successors, Lords Protectors of these nations, 
 and shall not be alienated but by consent in Parlia- 
 ment. And all debts, fines, issues, amercements, 
 penalties and profits, certain and casual, due to the 
 
1648-1653] TEXT 95 
 
 Keepers of the liberties of England by authority of 
 Parliament, shall be due to the Lord Protector, and 
 be payable into his public receipt, and shall be 
 recovered and prosecuted in his name. 
 
 XXXII. That the office of Lord Protector over 
 
 these nations shall be elective and not hereditary ; Article of 
 and upon the death of the Lord Protector, another Succession : 
 fit person shall be forthwith elected to succeed him not heredi- 
 in the Government ; which election shall be by the t^^T ruler. 
 Council, who, immediately upon the death of the Manner of 
 Lord Protector, shall assemble in the Chamber 
 where the}' usually sit in Council ; and, having given 
 notice to all their members of the cause of their 
 assembling, shall, being thirteen at least present, 
 proceed to the election ; and, before they depart the 
 said Chamber, shall elect a fit person to succeed in 
 the Government, and forthwith cause proclamation 
 thereof to be made in all the three nations as shall 
 be requisite ; and the person that they, or the major 
 part of them, shall elect as aforesaid, shall be, and 
 shall be taken to be, Lord Protector over these 
 nations of England, Scotland and Ireland, and the 
 dominions thereto belonging. Provided that none 
 of the children of the late King, nor any of his line 
 or family, be elected to be Lord Protector or other 
 Chief Magistrate over these nations, or any the 
 dominions thereto belonging. And until the afore- 
 said election be past, the Council shall take care 
 of the Government, and administer in all things 
 as fully as the Lord Protector, or the Lord Pro- 
 tector and Council are enabled to do. 
 
 XXXIII. That Oliver Cromwell, Captain-General 
 
 of the forces of England, Scotland and Ireland, Oliver Crom- 
 shall be, and is hereby declared to be, Lord Pro- J^^"' Protec- 
 tector of the Commonwealth of England, Scotland 
 and Ireland, and the dominions thereto belonging, 
 for his life. 
 
 XXXIV. That the Chancellor, Keeper or Com- 
 missioners of the Great Seal, the Treasurer, 
 
96 
 
 ENGLISH WRITTEN CONSTITUTIONS [Ch. VII 
 
 Tolerance of 
 Religion. 
 
 Intolerance 
 
 toward 
 
 Roman 
 
 Catholicism. 
 
 Spirit of 
 freedom. 
 
 Admiral, Chief Governors of Ireland and Scotland, 
 and the Chief Justices of both the Benches, shall be 
 chosen by the approbation of Parliament; and, in 
 the intervals of Parliament, by tlie approbation of 
 the major part of the Council, to be afterwards 
 approved by the Parliament. 
 
 XXXV. That the Christian religion, as contained 
 in the Scriptures, be held forth and recommended 
 as the public profession of these nations ; and that, 
 as soon as may be, a provision, less subject to 
 scruple and contention, and more certain than the 
 present, be made for the encouragement and main- 
 tenance of able and painful teachers, for the in- 
 structing the people, and for discovery and 
 confutation of error, hereby, and whatever is con- 
 trary to sound doctrine ; and until such provision be 
 made, the present maintenance shall not be taken 
 away or impeached. 
 
 XXXVI. That to the public profession held 
 forth none shall be compelled by penalties or other- 
 wise ; but that endeavours be used to win them 
 by sound doctrine and the example of a good 
 conversation. 
 
 XXXVII. That such as profess faith in God by 
 Jesus Christ (though differing in judgment from the 
 doctrine, worship or discipline publicly held forth) 
 shall not be restrained from, but shall be protected 
 in, the profession of the faith and exercise of their 
 religion ; so as they abuse not this liberty to the 
 civil injury of others and to the actual disturbance 
 of the public peace on their parts : provided this 
 liberty be not extended to Popery or Prelacy, nor 
 to such as, under the profession of Christ, hold 
 forth and practise licentiousness. 
 
 XXXVIII. That all laws, statutes and ordi- 
 nances, and clauses in any law, statute or ordinance 
 to the contrary of the aforesaid liberty, shall be 
 esteemed as null and void. 
 
 XXXIX. That the Acts and Ordinances of Par- 
 
1648-1653] TEXT 97 
 
 liameut made for the sale or other disposition of 
 the lands, rents and hereditaments of the late King, 
 Queen, and Prince, of Archbishops and Bishops, 
 &c.. Deans and Cliapters, the lands of delinquents 
 and forest-lauds, or any of them, or of any other 
 lands, tenements, rents and hereditaments belong- 
 ing to the Commonwealth, shall nowise be impeached 
 or made invalid, but shall remain good and firm ; 
 and that the securities given by Act and Ordinance 
 of Parliament for any sum or sums of money, by 
 any of the said lands, the excise, or any other pub- 
 lic revenue; and also the securities given by the 
 public faith of the nation, and the engagement of 
 the public faith for satisfaction of debts and dam- 
 ages, shall remain firm and good, and not be made 
 void and invalid upon any pretence whatsoever. 
 
 XL. That the Articles given to or made with the 
 enemy, and afterwards confirmed by Parliament, 
 shall be performed and made good to the persons 
 concerned therein ; and that such appeals as were 
 depending in the last Parliament for relief concern- 
 ing bills of sale of delinquent's estates, may be 
 heard and determined the next Parliament, any 
 thing in this writing or otherwise to the contrary 
 notwithstanding. 
 
 XLI. That every successive Lord Protector over 
 these nations shall take and subscribe a solemn 
 oath, in the presence of the Council, and such 
 others as they shall call to them, that he will seek 
 the peace, quiet and welfare of these nations, cause 
 law and justice to be equally administered ; and 
 that he will not violate or infringe the matters and 
 tilings contained in this writing, and in all other 
 things will, to his power and to the best of his 
 understanding, govern these nations according to 
 the laws, statutes and customs thereof. 
 
 XLII. That each person of the Council shall, 
 before they enter upon their trust, take and sub- 
 scribe an oath, that they will be true and faithful 
 
 7 
 
98 ENGLISH WRITTEN CONSTITUTIONS [Ch. VII 
 
 in their trust, according to the best of their knowl- 
 edge ; and that in the election of every successive 
 Lord Protector they shall proceed therein impar- 
 tially, and do nothing therein for any promise, fear, 
 favour or reward. 
 
 CONTEMPORARY EXPOSITION 
 OLIVER CROMWELL (1G53) 
 
 I suppose the Summons that hath been instrumental to bring 
 you hither gives you well to understand the occasion of your 
 being here. Howbeit, I have something farther to impart to 
 you, which is an Instrument drawn-up by the consent and 
 advice of the principal Officers of the Army ; which is a little 
 (as we conceive) more significant than the Letter of the Sum- 
 mons. We have that here to tender you ; and somewhat like- 
 wise to say fai'ther for our own exoneration : which we hope 
 may be somewhat farther for your satisfaction. And withal 
 seeing you sit here somewhat uneasily by reason of the scant- 
 ness of the room and heat of the weather, I shall contract ray- 
 self with respect thereunto. . . . 
 
 " But indeed " that is contained in the Paper here in my hand, 
 which will be offered presently to you to read. But having 
 done that, we havQ done upon such ground of necessity as we 
 have "now" declared, which was not a feigned necessity but 
 a real, — " it did behove us," to the end we might manifest to 
 the world the singleness of our hearts and our integrity who 
 did these things, Not to grasp at the power ourselves, or keep it 
 in military hands, no not for a day; but, as far as God enabled 
 us with strength and abilitj^, to put it into the hands of Proper 
 Persons that might be called from the several parts of the 
 Nation. This necessity ; and I hope we may say for ourselves, 
 this integrity of concluding to divest the Sword of all power in 
 the Civil Administration, — hath been that that hath moved us 
 to put You to this trouble ' ' of coming hither : " and having 
 done that, truly we think we cannot, with the discharge of our 
 own consciences, but offer somewhat to you on the devolving of 
 the burden on your shoulders. It hath been the practice of 
 others who have, voluntarily and out of a sense of duty, 
 
1653] CONTEMPORARY EXPOSITION 99 
 
 divested themselves, and devolved the Government into new 
 hands; I say, it hath been the practice of those that have 
 done so ; it hath been practised, aud is very consonant to 
 reason, to lay "down," together with their Authority, some 
 Charge "how to emploj^ it," (as we hope we have done), and 
 to press the duty " of employing it well: " concerning which 
 we have a word or two to offer you. . . . 
 
 I liave only this to add. The affairs of the Nation lying on 
 our hands to be taken care of ; and we knowing that both the 
 Affairs at Sea, the Armies in Ireland and Scotland, and the pro- 
 viding of things for the preventing of inconveniences, and the 
 answering of emergencies, did require that there should be no 
 Interruption, but that care ought to be taken for these things ; 
 and foreseeing likewise that before you could digest yourselves 
 into such a method, both for place, time and other circum- 
 stances, as you shall please to proceed in, some time would be 
 required, — which the Commonwealth could not bear in respect 
 to the managing of things: I have, within a week "past," 
 set-up a Council of State, to whom the managing of aifairs is 
 committed. Who, I may say, very voluntarily and freely, 
 before they see how the issue of things will be, have engaged 
 themselves in business; eight or nine of them being Members 
 of the House that late was. — I say I did exercise that power 
 which, I thought, was devolved upon me at that time ; to the 
 end affairs might not have any interval " or interruption." 
 And now when you are met, it will ask some time for the 
 settling of your affairs and your way. And, " on the other 
 hand," a clay cannot be lost, or "left vacant," but they must 
 be in continual Council till you take farther order. So that the 
 whole matter of their consideration also which regards them is 
 at your disposal, as you shall see cause. And therefore I 
 thought it my duty to acquaint you with thus much, to prevent 
 distractions in your way : That things have been thus ordered ; 
 that your affairs will " not stop, but" go on, " in the mean- 
 while," — till you see cause to alter this Council ; they having 
 no authority or continuance of sitting, except simply until you 
 take farther order. 
 
 Carltle, Life of Cromwell, First Speech to the Sixth Parliament. 111. 
 43, 70. 
 
100 EISTGLISH WRITTEN CONSTITUTIONS [Ch. 711 
 
 CRITICAL COMMENT 
 
 HALLAM (1S27) 
 
 They appointed a commission to consider the reformation of 
 the law, in consequence of repeated petitions against many 
 of its inconveniences and abuses ; who, though taxed of course 
 with dilatoriness by the ardent innovators, suggested many 
 useful improvements, several of which have been adopted in 
 more regular times, though with too cautious delay. They 
 proceeded rather slowly and reluctantly to frame a scheme 
 for future parliaments ; and resolved that they should consist 
 of 400, to be chosen in due proportion by the several counties, 
 nearly upon the model suggested by Lilburne, and afterwards 
 carried into effect by Cromwell. . . . 
 
 It was now the deep policy of Cromwell to render himself the 
 sole refuge of those who valued the laws, or the regular eccle- 
 siastical ministry, or their own estates, all in peril from the 
 mad enthusiasts who were in hopes to prevail. These he had 
 admitted into that motley convention of one hundred and 
 twenty persons, sometimes called Barebone's parliament, but 
 more commonly the little parliament, on whom his council of 
 officers pretended to devolve the government, mingling them 
 with a sufficient proportion of a superior class whom he could 
 direct. 
 
 Henry Hallam, The Constitutional History of England. II. 241, 242, 243. 
 MACAULAY (1849) 
 
 The name of king was hateful to the soldiers. Some of 
 them were indeed unwilling to see the administration in the 
 hands of any single person. The great majority, however, 
 were disposed to support their general as elective first magis- 
 trate of a commonwealth, against all factions which might 
 resist his authority ; but they would not consent that he should 
 assume the regal title, or that the dignity, which was the just 
 reward of his personal merit, should be declared hereditary in 
 his family. All that was left to him was, to give to the new 
 republic a constitution as like the constitution of the old 
 monarchy as the army would bear. . . . 
 
1827-1898] CRITICAL COMMENT 101 
 
 His plan bore from the first, a considerable resemblance to 
 the old English constitution ; but in a few years, he thought it 
 safe to proceed further, and to restore almost every part of the 
 ancient system under new names and forms. The title of 
 king was not revived, but the kingly prerogatives were intrusted 
 to a lord high protector. The sovereign was called, not His 
 Majesty, but His Highness. He was not crowned and anointed 
 in Westminster Abbey, but was solemnly enthroned, girt with 
 a sword of state, clad in a robe of purple, and presented with 
 a rich Bible, in Westminster Hall. His office was not declared 
 hereditary ; but he was permitted to name his successor. 
 
 Thomas Babington Macaulay, History of England. I. 104. 
 
 BAGEHOT (1872) 
 
 The second period of the British Constitution begins with the 
 accession of the House of Tudor, and goes down to 1688; it 
 is in substance the history of the growth, development, and 
 gradually acquired supremacy of the new great council. . . . 
 The steps were many, but the energy was one — the growth of 
 the English middle-class, using that word in its most inclusive 
 sense, and its animation under the influence of Protestantism. 
 ... A still stronger anti-Papal spirit entered into the middle 
 sort of Englishmen, and added to that force, fibre, and sub- 
 stance which they have never wanted, an ideal warmth and 
 fervour which they have almost always wanted. Hence the 
 saying that Cromwell founded the English Constitution. Of 
 course, in seeming, Cromwell's work died with him ; his 
 dynasty was rejected, his republic cast aside ; but the spirit 
 which culminated in him never sank again, never ceased to 
 be a potent, though often latent and volcanic force in the 
 
 country. 
 
 Walter Bagehot, English Constitution. 282. 
 
 J. R. GREEN (1874) 
 
 The dissolution of the Convention replaced matters in the 
 state in which its assembly had found them ; but there was 
 still the same general anxiety to substitute some sort of legal 
 rule for the power of the sword. The Convention had named 
 
102 ENGLISH WRITTEN CONSTITUTIONS [Ch. VII 
 
 during its session a fresh Council of State, and this body at 
 once drew up, under the name of the Instrument of Grovernment, 
 a remarkable Constitution, which was adopted by the Council 
 of Officers. They were driven by necessity to the step from 
 which they had shrunk before, that of convening a Parliament 
 on the reformed basis of representation, though such a basis 
 had no legal sanction. The House was to consist of four 
 hundred members from England, thirty from Scotland, and 
 thirty from Ireland. The seats hitherto assigned to small and 
 rotten boroughs were transferred to larger constituencies, and 
 for the most part to counties. All special rights of voting in 
 the election of members were abolished, and replaced by a 
 general right of suffrage, based on the possession of real or 
 personal property to the value of two hundred pounds. Catho- 
 lics and " Malignants " as those who had fought for the King 
 were called, were excluded for the while from the franchise. 
 Constitutionally all further organization of the form of govern- 
 ment should have been left to this Assembly; but the dread of 
 disorder during the interval of its election, as well as a long- 
 ing for " settlement," drove the Council to complete their work 
 by pressing the office of " Protector " upon Cromwell. . . . 
 The powers of the new Protector indeed were strictly limited. 
 Though the members of the Council were originally named by 
 him, each member was irremovable save by consent of the rest: 
 their advice was necessary in all foreign affairs, their consent 
 in matters of peace and war, their approval in nominations to 
 the great offices of state, or the disposal of the military or 
 civil power. With this body too lay the choice of all future 
 Protectors. To the administrative check of the Council was 
 added the political check of the Parliament. Three years at 
 the most were to elapse between the assembling of one Parlia- 
 ment and another. Laws could not be made, nor taxes im- 
 posed but by its authority, and after the lapse of twenty days 
 the statutes it passed became laws even if the Protector's 
 assent was refused to them. The new Constitution was un- 
 doubtedly popular; and the promise of a real Parliament in a 
 few months covered the want of any legal character in the new 
 rule. The G-overnment was generally accepted as a provisional 
 one, which could only acquire legal authority from the ratiflca- 
 
1827-1898] CRITICAL COMMENT 103 
 
 tion of its acts in the coming session ; and the desire to settle 
 it on such a Parliamentary basis was universal among the 
 members of the new Assembly which met in the autumn at 
 Westminster. 
 
 J. R. Gkeen, Short History of the English People. 585, 586. 
 TASWELL-LANGMEAD (1879) 
 
 In this connection it has been observed, that the significance 
 of the Commonwealth consists before all else in the fact that 
 England for the first time in its history showed the world what 
 a strong resolute government, freed from the fetters of the 
 mediaeval parliamentary State, and a government which, in 
 respect of broad views and absence of prejudice, was far in 
 advance of its time, could achieve both without and within. 
 
 T. P. Taswell-Langmead, English Constitutional History. 508. 
 HANNIS TAYLOR (1889) 
 
 As early as October, 1647, the levellers had embodied 
 their new conception of government in the draft of a constitu- 
 tion entitled " The Agreement of the People," which proposed, 
 first, that the constituencies should be " more indifferently pro- 
 portioned according to the number of inhabitants ; " second, 
 that the existing parliament should be dissolved on September 
 30, 1648 ; third, that all future parliaments should be triennial ; 
 fourth, that a single elected chamber should be supreme in all 
 things not " expressly or impliedly reserved by the represented 
 to themselves." This prototype of all constitutions, state and 
 federal, as they exist to-day in the United States, was to draw 
 its authority from a direct acceptance by the people, who re- 
 served to themselves, by express constitutional limitations 
 upon the powers granted, certain rights, among which the 
 agreement pointedly named the absolute right to religious liberty 
 and due process of law. . . . 
 
 The scheme of government embodied in the ' ' Instrument " 
 undertook to impose a twofold limitation upon the powers of 
 the chief of state, whom it designated as lord protector. The 
 supreme executive power was vested in him, acting with the 
 advice of a council of state whose members, though originally 
 
104 ENGLISH WRITTEN CONSTITUTIONS [Ch. VII 
 
 appointed by him, were irremovable save by the consent of the 
 rest. With the advice of the council the protector could treat 
 with foreign states, with its consent he could make peace and 
 war, while in it alone was vested the power to choose all future 
 protectors. The supreme legislative power was vested in the 
 protector, and a parliament consisting of a single chamber to 
 be composed of four hundred members from England, thirty 
 from Scotland, and thirty from Ireland, according to the plan 
 formulated by Vane at the close of the Long Parliament, but 
 which that body failed to enact into law. No statutes were 
 to be passed nor taxes imposed without the consent of this 
 assembly, and all of its enactments were to become law within 
 twenty days even without the protector's consent, unless he 
 could persuade the house of the reasonableness of his objec- 
 tions. It was not to be adjourned, prorogued, or dissolved 
 without its own consent within the first five months after its 
 meeting, and a new parliament was to be assembled every three 
 years. Every person possessed of real or personal property of 
 the value of two hundred pounds had the right to vote for 
 members, and all were eligible as electors or as members except 
 malignants, delinquents, and Roman Catholics. Religious 
 liberty was guaranteed to all Christians except prelatists, 
 papists, and those who taught licentiousness under the name of 
 religion. As the new chamber thus provided for was not to 
 meet until the third of the following September, the protector 
 was authorized in the mean time to raise all money necessary for 
 the public service, and to make ordinances, which should have 
 the force of law until the subjects embraced in them could be 
 provided for by parliamentary enactments. Under this provi- 
 sion, which gave to the protector a wide scope for the exercise 
 of his administrative genius, he issued before the parliament 
 met sixty-four ordinances, which embraced all the more import- 
 ant questions then pressing for solution in church and state. 
 
 Hannis Taylor, The Origin and Growth of the English Constitution. 
 II. 341-349. 
 
 S. R. GARDINER (1889) 
 
 On January 15, 1649, whilst the King's fate was still in sus- 
 pense, the Council of the Army set forth a document known as 
 
1827-1898] CRITICAL COMMENT 105 
 
 the Agreemeut of the People. It was a sketch of a written 
 Constitution for a Republican Goyernmeut based on the Heads 
 of the Proposals [see this paper in Gardiner's Constitutional 
 Documents^ page 232], omitting everything that had reference 
 to the King. The Heads of the Proposals had contemplated 
 the retention of the Royal authority in some shape or another, 
 and had been content to look for security to Acts of Parliament, 
 because, though every Act was capable of being repealed, it 
 could not be repealed without the consent both of the King and 
 the Houses, and the Houses might be trusted to refuse their 
 consent to the repeal of any Act which checked the despotism 
 of the King; w4iilst the King could be trusted to refuse his con- 
 sent to the repeal of any Act which checked the despotism of 
 the Houses. With the disappearance of Royalty the situation 
 was altered. The despotism of Parliament was the chief danger 
 to be feared, and there was no possibility of averting this by 
 Acts of the Parliament itself. Naturally, therefore, arose the 
 idea of a written Constitution, which the Parliament itself 
 would be incompetent to violate. According to the proposed 
 scheme, the existing Parliament was to be dissolved on April 
 30, 1649. After this there was to be a biennial Parliament 
 without a House of Lords, a redistribution of seats, and a rating 
 franchise. For seven years all who had adhered to the King 
 were to be deprived of their votes, and during the first and 
 second Parliaments only those who had by contributions or by 
 personal service assisted the Parliament, or who had refrained 
 from abetting certain combinations against Parliament, were to 
 be capable of being elected, whilst those who had actually sup- 
 ported the King in the war were to be excluded for fourteen 
 years. Further, no official was to be elected. There was to 
 be a Council for " managing public affairs." Further, six pai-- 
 ticulars were set down with which Parliament could not meddle, 
 all laws made on those subjects having no binding force. 
 
 As to religion, there was to be a public profession of the 
 Christian religion " reformed to the greatest purity of doctrine," 
 and the clergy were to be maintained " out of a public treasury," 
 but " not by tithes." This public religion was not to be 
 " Popery or Prelacy." No one was to be compelled to con- 
 formity, but all religions which did not create disturbances were 
 
106 ENGLISH WRITTEN CONSTITUTIONS [Ch. VII 
 
 to be tolerated. It was not, however, to be understood " that 
 this liberty shall necessarily extend to Popery or Prelacy," a 
 clause, the meaning of which is not clear, but which was prob- 
 ably intended to leave the question open to Parliament to decide. 
 The Article on Religion was, like the six reserved particulars, 
 to be out of the power of Parliament to modify or repeal. 
 
 The idea of reserving certain points from Parliamentary action 
 was one which was subsequently adopted in the American Con- 
 stitution, with this important difference, that the American 
 Constitution left a way open by which any possible change 
 could be effected by consulting the nation ; whilst the Agree- 
 ment of the People provided no way in which any change in 
 the reserved powers could be made at all. In short, the found- 
 ers of the American Constitution understood that it was useless 
 to attempt to bind a nation in perpetuit}^, whilst the English 
 Council of the Army either did not understand it, or distrusted 
 the nation too far to make provision for what they knew must 
 come in time. . . . 
 
 That the execution of the King made the diflflculties in the 
 way of the establishment of a Republic greater than they had 
 been, it is impossible to deny ; but the main difficulties would 
 have existed even if the King had been deposed instead of 
 executed. There are two foundations upon which government 
 must rest if it is to be secure, the traditional continuity which 
 is derived from the force of habit, and the national support 
 which is derived from the force of will. The Agreement of the 
 People swept the first aside, and only trusted the latter to a 
 very limited extent. 
 
 The Instrument of Government was intended to suit a Con- 
 stitutional Government carried on by a Protector and a single 
 House. The Protector therefore stepped into the place of the 
 King, and there were therefore clauses inserted to define and 
 check the power of the Protector, which may fitly be compared 
 with those of the Heads of the Proposals. The main difference 
 lay in this, that the Heads of the Proposals were intended to 
 check a King who, at least for some time to come, was to be 
 regarded as hostile to the Parliament, whereas the Instrument 
 of Government was drawn up with the sanction of the Pro- 
 tector, and therefore took it for granted that the Protector was 
 
1827-1898J CRITICAL COMMENT 107 
 
 not to be guarded against as a possible enemy. His power 
 however was to be limited first by his Council of State, and 
 secondly by Parliament. 
 
 Parliament was to be elected and to meet, not as according 
 to the Agreement of the People, once in two, but once in three 
 years, and to remain in session at least five months. It was 
 to be elected in accordance with a scheme for the redistribu- 
 tion of seats based on that set forth in the Agreement of the 
 People, the Protector and Council having leave to establish 
 constituencies in Scotland and Ireland, which were now to send 
 members to the Parliament of Westminster. It was the first 
 attempt at a parliamentary union between the three countries 
 carried out at a time when such a union was only possible, be- 
 cause two of the countries had been conquered by one. Instead 
 of the old freehold franchise, or of the rating franchise of the 
 Agreement of the People, there was the franchise in the counties 
 to be given to the possessors of real or personal estate to the 
 value of £200. As nothing was said about the boroughs, the 
 right of election would remain in those who had it under 
 the Monarchy, that is to say, it would vary according to the 
 custom of each borough. In those boroughs in which the cor- 
 porations elected, the feeling by this time would be likely 
 to be anti-Royalist. The disqualification clauses were less 
 stringently drawn than in the Agreement of the People, but all 
 who had abetted the King in the war were to be deprived of 
 their votes at the first election and of the right of sitting in 
 the first four Parliaments. Those who had abetted the Re- 
 bellion in Ireland, or were Roman Catholics, were permanently 
 disqualified from sitting or voting. . . . 
 
 The clauses relating to the power of Parliament in matters of 
 finance seem to have been modelled on the old notion that 
 " the King was to live of his own" in ordinary times. A con- 
 stant yearly revenue was to be raised for supporting an army 
 of 30,000 men — now regarded as a permanent charge — and 
 for a fleet sufficient to guard the seas as well as £200,000 for 
 the domestic administration. The total amount, and the 
 sources of the necessary taxation, were to be settled by the 
 Protector and Council ; Parliament having no right to diminish 
 it without the consent of the Protector. With respect to 
 
108 ENGLISH WRITTEN CONSTITUTIONS [Ch. VII 
 
 war expenses, they were to be met by votes of Parliament, ex- 
 cept that in the intervals of Parliament the Protector and 
 Council might raise money to meet sudden emergencies from 
 war till the Parliament could meet, which the Protector and 
 Council were bound to summon for an extraordinary session in 
 such an emergency. . . . 
 
 The functions of the Council were of considerable importance. 
 In all important matters the Protector had to act by its advice, 
 and when Parliament was not in session it was to join him in 
 passing Ordinances which were to be obeyed until in the next 
 session Parliament either confirmed them or disallowed them. 
 On the death of the Protector it was the Council which was to 
 elect his successor. . . . 
 
 The Instrument of Government suffered not only under the 
 vice of ignoring the probable necessity of its amendment in the 
 future, but also under the vice of having no support either in 
 traditional loyalty nor in national sanction. If, however, we 
 pass over these all-important faults, and discuss it from the 
 purely constitutional point of view, it is impossible not to be 
 struck with the ability of its framers, even if we pronounce 
 their work to be not entirely satisfactory. It bears the stamp 
 of an intention to steer a middle course between the despotism 
 of a " single person " and the despotism of a " single House." 
 Parliament had supreme rights of legislation, and the Protector 
 was not only sworn to administer the law, but every illegal act 
 would come befoi-e the courts of law for condemnation. Parlia- 
 ment, too, had the right of disapproving the nominations to 
 the principal ininisterial offices, and of voting money for con- 
 ducting operations in time of war. Where it fell short of the 
 powers of modern Parliaments was in its inability to control 
 administrative acts, and in its powerlessness to refuse supplies 
 for the carrying on of the government in time of peace. A 
 modern Parliament can exercise these powers with safety, be- 
 cause if it uses them foolishly a government can dissolve it 
 and appeal to the nation, whereas Cromwell, who was but the 
 head of a party in the minority, and whose real strength 
 rested on the army, did not venture to appeal to the nation at 
 large, or even to appeal too frequently to the constituencies 
 who were to elect his Parliament. 
 
1827-1898] CRITICAL COMMENT 109 
 
 The real constitutional safeguard was intended to be in the 
 Council of State. Ultimately, after the death of the Councillors 
 named in the Instrument, the Council of State would indirectly 
 represent the Parliament, as no one would have a place on it 
 whose name had not been one of six presented by Parliament. 
 In the Council of State, the Protector would be in much the 
 same position as a modern Prime Minister in his Cabinet, ex- 
 cept that each member of the Council held his position for life, 
 whereas a modern Prime Minister can obtain the resignation of 
 any member of the Cabinet with whom he is in strong disagree- 
 ment. On the other hand, the greater part of the members of 
 a modern Cabinet are heads of executive departments, and thus 
 have a certain independent position of their own. In some 
 respects indeed, the relations between the Protector and the 
 Council were more like those between an American President 
 and the Senate in executive session, than those between an 
 English Prime Minister and the Cabinet. The members of the 
 American Senate are entirely independent of the President, as 
 the members of the Council of the Protectorate were entirely 
 independent of the Protector when once they had been chosen. 
 On the other hand, the two bodies differed in a most important 
 particular. The tendency of the American Senate, which is 
 never oflScially brought into personal contact with the Presi- 
 dent, is to be antagonistic to the President. The tendency of 
 the Council of State, which was in daily contact with the Pro- 
 tector, was to work with him instead of against him. It was 
 not, however, in consequence of its merits or demerits as a 
 constitutional settlement that the Instrument of Government 
 failed. It broke down because the first Parliament summoned 
 under it refused to acknowledge its binding force, and claimed 
 to be a constituent as well as a legislative body. 
 
 S. II. Gardiner, Introduction to Constitutional Documents of the Puritan 
 Revolution, lii. lix. 
 
 J. K. HOSMER (1890) 
 
 On the 20th, the agreement of the People was formally pre- 
 sented. ... In 1647, Ireton, to whom the bold and masterly 
 elaboration was for the most part due, had not been ready for so 
 radical a step, and had left the council abruptly, as we have 
 
110 ENGLISH WRITTEN CONSTITUTIONS [Ch. VII 
 
 seen, at the suggestion of laying by the King ; but in the Army 
 now, rank and file and chiefs stood together. The paper con- 
 sisted of ten articles. . . . Except the 8th article, relating to 
 the religious establishment, which, judged by modern ideas, is 
 narrow, there is nothing here not most thoroughly reasonable. 
 Ireton himself, like Cromwell and Vane, was ready for the 
 broadest toleration, including even Jews, infidels, and Pagans ; 
 but even in the Rump there were prejudices that must be 
 humoured. On the 6th of February it was resolved : " That the 
 House of Peers in Parliament is useless and dangerous, and 
 ought to be abolished," and on the following day, " that the office 
 of the King. ... is unnecessary, burdensome, and dangerous 
 to the liberty, safety, and public interest of the People of this 
 nation, and therefore ought to be abolished." The old order 
 was thus completely swept away, and England was a Republic. 
 The English reforms already gained in the nineteenth century, 
 and still in progress at the present hour, were all anticipated : 
 all too, that is most essential in the American system had been 
 formulated. 
 
 Thus we see that popular government, the heritage from the 
 ancient Saxon time, seemed likely to have in the days of the 
 Ironsides a most complete and memorable revival. It is to be 
 noticed that it came about as something into which people were 
 forced, rather than something which they voluntarily embraced. 
 Eliot, Pym, and Hampden never conceived for England of a 
 polity in which King and Lords should be swept away. It was 
 the rank and file of the Army, the plain people, the tradesmen 
 of the towns ; or rather, since the towns in great majority be- 
 came Presbyterian, it was the small farmers, the yeomen, from 
 whom proceeded the first assertion of a complete right to self- 
 government. Their own leaders at first held back, in some 
 cases denouncing so thorough a sweep. At last, however, 
 Cromwell, Ireton, Vane, and Milton stood thoroughly with the 
 men, — justifying themselves in their course by the belief that 
 they undertook no new thing, but only restored the essentials 
 of that most ancient freedom that had been so deeply overlaid. 
 
 James K. Hosmer, A Short History of Anglo-Saxon Freedom. 152-155. 
 
1827-1898] CRITICAL COMMENT 111 
 
 BORGEAUD (1892) 
 
 At the culminating point of the Puritan Revolution, when 
 Cromwell, swept on by the democratic movement, is compelled 
 to follow it if he would become its master, a curious constitu- 
 tional project is seen coming to the surface. This is the 
 "Agreement of the People " presented by the army to the 
 House of Commons, for its approval and eventual submission 
 to the people. The idea of its authors, clearly stated in the 
 document itself, and discussed in the pamphlets of the day, was 
 the establishment of a supreme law, placed beyond the reach of 
 Parliament, defining the powers of that body and expressly 
 declaring the rights which the nation reserved to itself and 
 which no authority might touch with impunity. This popular 
 compact was to receive the personal adhesion of the citizens, 
 according to a special procedure therein provided. Its pro- 
 mulgation depended upon its acceptance by the people. 
 
 Charles Borgeaud, Adoption and Aviendment of Constitations in Europe 
 and America, translated by C. D. Hazen. 5-6. 
 
 BORGEAUD (1894) 
 
 This manifesto contains the outline of a complete constitu- 
 tion. When we read it and summarize the demands it con- 
 tains, we are astounded to find that it is nearly two centuries 
 and a half old. The principles which it lays down are, for the 
 most part, the very principles which contemporary democracy 
 has first succeeded in establishing, or is still demanding. The 
 sovereignty of the people: supreme power vested in a single 
 representative assembly; the executive entrusted by an as- 
 sembly to a council of state, elected for the term of one 
 legislature; biennial parliaments; equitable and proportionate 
 distribution of seats : extension of the right of voting, and of 
 election to all citizens dwelling in the electoral districts who 
 are of full age, and neither hired servants nor in receipt of 
 relief : the toleration of all forms of Christianity : the suppres- 
 sion of state interference in church government ; the limitation 
 of the powers of the representative assembly, by fundamental 
 laws embodied in the constitution, especially with regard to the 
 civil liberties guaranteed to citizens — these are the principles 
 
112 ENGLISH WRITTEN CONSTITUTIONS [Ch. VII 
 
 proclaimed by the English democrats in January, 1648-49. 
 . . . This document bears the significant title of " An Agree- 
 ment of the People of England." It was presented to Parlia- 
 ment, not in order that Parliament might publish it of its own 
 authority, but that it might approve it and submit it to the 
 nation. ... It was a real constitutional Charter, founded on 
 the direct acceptance of the people, and placed above the reach 
 of the representative Assembly — a constitution in the sense 
 in which the word is understood by the democracies of the 
 United States and Switzerland to-day. 
 
 When the roll containing the Agreement of the People was 
 presented to the House of Commons, the address was listened 
 to with all the respect due to the rank of those who bore it, and 
 a vote of thanks was passed with great solemnity. The read- 
 ing of the Agreement itself, however, was put off to a more 
 convenient season. Business of the greatest importance was 
 then occupying the minds of some of its members. On that 
 very day began the trial of the King. 
 
 It is remarkable, however, that certain reforms which had 
 formerly been demanded by the democratic pai"ty, or brought 
 forward in the Agreement of the People, were carried out 
 during the Protectorate ; for example, the judicial reforms and 
 the reforms in the system of parliamentary representation. 
 
 The Instrument of Government which was elaborated in 1653 
 by the Council of Officers, was a written Constitution, the first, 
 and down to the present time the only one ever possessed by 
 modern England. 
 
 Charles Borgeaud, Rise of Modern Democracy in Old and New Eng- 
 land, translated by Mrs. Birkbeck Hill. 38-98. 
 
 RANSOME (1895) 
 
 Three days later, a new constitution, devised by Lambert 
 and embodied in the Instrument of Government, was accepted 
 by the council of officers. In it the executive and legislative 
 powers were distributed between a Protector, a council of 
 state, and a parliament. Cromwell Avas named Protector, and 
 was to be general by sea and land. He was, however, to 
 decide questions of war and peace by the advice of the council 
 
1827-1898] CRITICAL COMMENT 113 
 
 of state, and in ease of war, parliament was to be immediately 
 summoned. The m^embers of the council of state were also 
 named in the instrument : and the chief were Lambert, Des- 
 borough, Montague, Skippou, Antony Ashley Cooper, and six 
 others. On the death of any of these, the vacancy was to be 
 filled up by the Protector from a list of six names chosen by 
 parliament. All legislative power was reserved to parliament, 
 but the Protector might suspend the coming into operation of 
 any act for twenty days. Parliaments were to be elected by 
 the new constituencies proposed by the Long Parliament, in 
 accord with the Agreement of the People. They were to be 
 held every third year ; but no parliament was to be dissolved 
 till it had sat five months. By these arrangements it was 
 hoped to combine the freedom of republican institutions with 
 the practical efficiency of a single sovereign acting through a 
 cabinet. In reality, except when parliament was sitting, it 
 gave almost unlimited power to the Protector. Cromwell at 
 once accepted the post of Protector, and was solemnly inaugu- 
 rated in Westminster Hall, Lambert taking the leading share 
 in the ceremony. 
 
 Cyril Ransome, An Advanced History of England. 600. 
 
 MEDLEY (1898) 
 
 From 1642 to 1660 the English Constitution was practically 
 in abeyance ; but the expedients which were evoked to fill the 
 void, formed no unimportant element in the future development 
 of the constitution. For, in the first place, the period of the 
 Commonwealth was distinguished by an attempt to change the 
 whole current of English history. As things have worked 
 themselves out, we have a constitution which contains no 
 fundamental laws unalterable by the three Estates in Parlia- 
 ment assembled, but leaves that body the legal sovereign with 
 control of the executive. But had the constitutions projected 
 under the Commonwealth been permanent, the development of 
 our system would have been hampered, if not checked, by 
 fundamental laws, and the written constitution would have 
 been sovereign instead of Parliament; while the executive and 
 legislature would have existed independently of each other, as 
 in the United States at the present day. In the second place. 
 
114 ENGLISH WRITTEN CONSTITUTIONS [Ch. VII 
 
 Cromwell was perhaps chiefly hindered by his conservatism. 
 For he fell back on old expedients, and tried, as far as 
 might be, to reproduce the old constitution without those 
 links of historical association which had bound its several 
 parts together, and with that balance of powers which his 
 training in the ranks of the parliamentary party had led him 
 to regard as the ideal. Thus the Instrument of Government 
 set up an executive of a Protector and Council with co-ordi- 
 nate authority, and a Parliament of one chamber independent 
 of the Council, unable on the one hand to alter the constitu- 
 tion, and on the other hand to be itself adjourned or dissolved 
 for five months without its own consent. 
 
 Dudley Julius Medley, A Student's Manual of English Constitutional 
 History. 305-306. 
 
1679] HABEAS CORPUS ACT— TEXT 115 
 
 Chapter VIII 
 HABEAS CORPUS ACT (1679) 
 
 SUGGESTIONS 
 
 The document for the Habeas Corpus Act is intituled " an act for tlie 
 better securing of the liberty of the subject and for prevention of 
 imprisonments beyond the seas." Various attempts have been made 
 unsuccessfully to obtain the passage of two Bills, one to give a more 
 expeditious use of the writs of Habeas Corpus in Criminal matters — 
 the other to prevent imprisonment in jails beyond the seas. 
 
 The old principle of relief from arbitrary arrest laid down in Magna 
 Charta, and applied throughout the succeeding constitutions, always 
 lacked a short and easy process of establishing the fact of illegal de- 
 tention. At length in 1679 this famous act was passed ; although 
 defective in the promises as to bail and common law and falsehood, 
 this statute stands as one of the most important landmarks of human 
 liberty. It should be studied in its relation to the growth of the 
 liberty of the subject. 
 
 For Outlines and Material, see Appendix A. 
 
 DOCUMENT 
 Habeas Corpus Act (1679) 
 
 Extracts from the Provisions of the Statute, 31° 
 Car. II. c. 2. 
 
 1. That on complaint and request in writing by or Translitera- 
 
 on behalf of any person committed and charged with ^^^ SMes 
 
 any crime (unless committed for treason or felony of the Realm, 
 
 expressed in the warrant; or as accessory, or on sus- J) 935-938. 
 .. « -, . in iiJ^^L^ '^ee Appen- 
 
 picion of being accessory, before the tact, to any ^jx (B) 
 
 petit- treason or felony : or upon suspicion of such for full text. 
 
 Note Maf^na 
 petit-treason or felony, plainly expressed in the war- ct^arta Art. 
 
 rant ; or unless he is convicted or charged in execu- 39^0. 
 
 tion by legal process), the lord chancellor or any 
 
 of the twelve judges, in vacation, upon viewing a 
 
116 HABEAS CORPUS ACT [Ch. VIII 
 
 copy of the warrant, or affidavit that a copy is 
 
 denied, shall (unless the party has neglected for two 
 
 There are terms to apply to any court for his enlargement) award 
 
 made^use of ^ ^ ^^^^^^^^ cow^s for such prisoner, returnable im- 
 
 in England; mediately before himself or any other of the judges; 
 
 and the ^^^ upon the return made shall discharge the party, 
 
 still others, if bailable, upon giving security to appear and answer 
 
 in the Uni- to the accusation in the proper court of iudicature. 
 ted States 
 
 2. That such writs shall be endorsed, as granted 
 
 in pursuance of this act, and signed by the person 
 
 awarding them. 
 
 Blackstone 3. That the writ shall be returned and the prisoner 
 
 counts this a brought up, within a limited time according to the 
 
 high pre- . t • ^ 
 
 rogative." distance, not exceednig ni any case twenty days. 
 
 4. That officers and keepers neglecting to make 
 due returns, or not delivering to the prisoner or his 
 agent within six hours after demand a copy of the 
 warrant of commitment, or shifting the custody of 
 a prisoner from one to another, without sufficient 
 reason or authority, (specified in the act,) shall for 
 the first offence forfeit £100 and for the second 
 offence £200 to the party grieved, and be disabled 
 to hold his office. 
 
 5. That no person, once delivered by habeas 
 coT'pus^ shall be recommitted for the same offence, 
 on penalty of £500. 
 
 6. That every person committed for treason or 
 felony shall, if he requires it the first week of the 
 next term, or the first day of the next session of 
 oyer and terminer, be indicted in that term or ses- 
 sion, or else admitted to bail ; unless the king's 
 witnesses cannot be produced at that time ; and if 
 acquitted, or if not indicted and tried in the second 
 term or session, he shall be discharged from his im- 
 prisonment for such imputed offence ; but that no 
 person, after the assizes shall be open for the county 
 in which he is detained, shall be removed by habeas 
 corpus, till after the assizes are ended ; but shall be 
 left to the justice of the judges of assize. 
 
1724] CONTEMPORARY EXPOSITION 117 
 
 7. That any such prisoner may move for and 
 obtain his habeas corpus, as well out of the chan- 
 cery, or exchequer, as out of the king's bench or 
 common pleas; and the lord chancellor or judges 
 denying the same, on sight of the warrant or oath 
 that the same is refused, forfeit severally to the 
 party grieved the sum of £500. 
 
 8. That this writ of habeas corpus shall run This act, as 
 
 into the counties palatine, cinque ports, and other expressed in 
 ■ ■-, -.1 T . 1 . 1 T <- V , early writs, 
 
 privileged places, and the islands of Jersey and was so often 
 
 Guernsey. broken in 
 
 rpi*^ri of 
 
 9 . That no inhabitant of England (except per- Charles I. 
 
 sons contracting, or convicts praying, to be trans- that it 
 
 ported; or having committed some capital offence about the 
 
 in the place to which they are sent) shall be sent parliamen- 
 
 prisoner to Scotland, Ireland, Jersey, Guernsey, or tary inquiry 
 
 1 1 -, ,\ •.-, ■ . -, , endmg m the 
 
 any places beyond the seas, withm or without the Petition of 
 
 king's dominions ; on pain that the party commit- Right, 1628. 
 
 ting, his advisers, aiders, and assistants, shall forfeit Broken in 
 
 to the party grieved a sum not less than £500 to portatkm ' 
 
 be recovered with treble costs ; shall be disabled to Act in reign 
 
 bear any office of trust or profit ; shall incur the of George 
 
 penalties of praemunire; and shall be incapable of 
 
 the king's pardon. 
 
 CONTEMPORARY EXPOSITION 
 
 BISHOP BURNET (1724) 
 
 It was carried by an odd artifice in the House of Lords. Lord 
 Grey and Lord Norris were named to be the tellers. Lord 
 Norris being a man subject to vapours, was not at all times 
 attentive to what he was doing, so, a very fat lord coming in. 
 Lord Grey counted him for ten as a jest at first, but seeing 
 Lord Norris had not observed it, he went on with this mis- 
 reckoning of ten ; so it was reported to the house, and declared 
 that they who were for the bill were the majority, though it 
 indeed went on the other side ; and by this means the bill 
 was past. 
 
 Gilbert Burnet, History of His Own Time. I. 485. 
 
118 HABEAS CORPUS ACT [Ch. VIII 
 
 CRITICAL COMMENT 
 
 BLACKSTONE'S COMMENTAEIES (17G5) 
 
 The oppression of an obscure individual gave birth to the 
 famous habeas corpus act (31 Car. II. c. 2) which is frequently 
 considered as another magna carta of the kingdom ; and by 
 consequence and analogy has also in subsequent times reduced 
 the general method of proceeding on these writs ... to the 
 true standard of law and liberty. 
 
 Sir Wm. Blackstone, Commentaries on the Laws of England. B. III. 
 135-136. 
 
 CREASY (1859) 
 
 The Habeas Corpus Act also, which was passed in this reign 
 (31 Car. 11. c. 2), is of great constitutional value, though it by 
 no means introduced any new principle into our system, or 
 formed any such epoch in the acquisition of the national liber- 
 ties as some writers represent. But it made the remedies 
 against arbitrary imprisonment short, certain, and obtainable 
 at all times and in all cases. . . . 
 
 These enactments, and especially the Habeas Corpus Act, 
 make the name of Charles II. figure creditably in our statute- 
 book, and there is one judicial decision of this reign which 
 established a constitutional principle of the highest value, or 
 rather which put an end to a long-continued abuse of the most 
 perilous character. 
 
 E. S. Ckexs.x, Rise and Progress of the English Constitution. 269,272. 
 R. C. HURD (1877) 
 
 It was not to bestow an immunity from arbitrary imprison- 
 ment, which is abundantly provided in Magna Carta (if .indeed 
 it is not much more ancient), that the statute of Charles II. 
 was enacted ; but to cut off the abuses by which the govern- 
 ment's lust of power, and its servile subtlety of crown lawyers, 
 had impaired so fundamental a privilege. 
 
 ROLLIN C. HuRD, Pught of Personal Lihertij. 84. 
 
1765-1889] CRITICAL COMMENT 119 
 
 PATERSON (1877) 
 
 On May 27, 1679, the Habeas Corpus Act passed, and, 
 after the lapse of two centuries, it has been found by experi- 
 ence to have made the machinery revolve so promptly and cut 
 so clearly into the marrow of all the mischiefs attending the 
 possession of might, regardless of right, that no king or min- 
 ister, led away with the dream of power, has since sought 
 seriously to baffle or disable it. . . . It is now a familiar code, 
 and represents a whole armoury of strength, for every line 
 and syllable of which each citizen would fight to the last, as 
 for his household gods. Holt said every man should be con- 
 cerned for Magna Charta. And the Habeas Corpus Act is only 
 a natural sequel and development of Magna Charta. No dic- 
 tator, whether single-handed or hydra-headed, can long breathe 
 the same air with those who have caught the secret of its power. 
 It appeals to the first principles of security, and to the law of 
 natui'e, if any such there be. Its whole essence is nothing- 
 else than this. Every human being, who is not charged with 
 or convicted of a known crime, is entitled to personal liberty. 
 
 James Paterson, Liberty of the Subject, Securiti/ of the Person. II. 207-8. 
 TASWELL-LANGMEAD (1870) 
 
 It was subject, however, to three defects. (1) It fixed no 
 limit on the amount of bail which might be demanded. (2) It 
 only applied to commitments on Criminal or supposed Criminal 
 charges; all other cases of unjust imprisonment being left to 
 the habeas corpus at Common Law as it subsisted before this 
 enactment. (3) It did not guard against falsehoods in the 
 return. The first of these defects was remedied in 1689, by 
 the Bill of Rights, which declared " that excessive bail ought not 
 to be required." The other two (notwithstanding a serious 
 attempt in 1757 to render the habeas corjnis at Common Law 
 more eflflcient) subsisted down to the year 1816 when they were 
 at length removed by ' An Act for more effectually securing 
 the liberty of the subject.' (56 Geo. III. c. 100.) 
 
 T. P. Taswell-Langmead, j??!<7/js/i Constitutional Histonj. 521. 
 
120 HABEAS CORPUS ACT [Ch. VIII 
 
 DICEY (1885) 
 
 The right to the writ of Habeas Corpus existed at common law 
 long before the passing in 1679 of the celebrated Habeas Corpus 
 Act (31 Car. II. cap. 2), and you may wonder how it has hap- 
 pened that this and the subsequent Act (56 Geo. III. cap. 100) 
 are treated and (for practical purposes) rightly treated, as the 
 basis on which rests an Englishman's security for the enjoy- 
 ment of his personal freedom. The explanation is, that prior 
 to 1679 the right to the writ was often, under various pleas and 
 excuses, made of no effect. The aim of the Habeas Corpus 
 Act has been to meet all the devices by which the effect of the 
 writ can be evaded, either on the part of the judges, who 
 brought to issue the same, and if necessary discharge the pris- 
 oner, or on the part of the gaoler or the person who has the 
 prisoner in custody. The earlier Act of Charles the Second 
 applies to persons imprisoned on a charge of crime. The later 
 Act of G-eorge the Third applies to persons deprived of their 
 liberty otherwise than on a criminal accusation. 
 
 Albert V. Dicey, Introduction to the Study of the Laivofthe Constitution. 
 207. 208. 
 
 MAY (1887) 
 
 The writ of Habeas Corpus is unquestionably the first security 
 of civil liberty. It brings to light the cause of every imprison- 
 ment, approves its lawfulness, or liberates the prisoner. It 
 exacts obedience from the highest courts ; Parliament itself 
 submits to its authority. No right is more justly valued. It 
 protects the subject from unfounded suspicions, from the 
 aggressions of power, and from abuses in the administration of 
 justice. Yet this protective law, which gives every man 
 security and confidence in times of tranquillity, has been sus- 
 pended, again and again, in periods of public danger or appre- 
 hension. Rarely, however, has this been suffered without 
 jealousy, hesitation, and remonstrance ; and whenever the 
 perils of the state have been held sufficient to warrant this 
 sacrifice of personal liberty, no minister or magistrate has been 
 suffered to tamper with the law at his discretion. Parliament 
 alone, convinced of the exigency of each occasion, has sus- 
 
1765-1889] CRITICAL COMMENT 121 
 
 pencled, for a time, the rights of individuals, in the interests of 
 the state. 
 
 Sir Thomas Erskihe May, The Constitutional History of England. II. 
 252, 253. 
 
 HANNIS TAYLOR (1889) 
 
 To put an end forever to every device, plea, or excuse by 
 which the right to the actual benefits of the writ had been for- 
 merly made abortive, was finally passed the Habeas Corpus 
 Act of 1679, the essence of which is that the chancellor and all 
 of the judges are charged with the duty upon a proper appli- 
 cation to direct the writ even he privileged places, including 
 the islands of Jersey and Guernsey, requiring any person who 
 is imprisoned to be actually and speedily brought before the 
 court, together with the cause of the imprisonment, to the end 
 that such court may either set him free, bail him, or remand 
 him for a speedy trial, as justice may require. 
 
 Hannis Taylor, Origin and Growth of the Ejiglish Constitution. II. 382. 
 
122 THE BILL OF RIGHTS [Ch. IX 
 
 Chapter IX 
 THE BILL OF RIGHTS (1689) 
 
 SUGGESTIONS 
 
 In the second session of the Convention Parliament, which reassem- 
 bled on the 25th of October, 1689, the Declaration of Right, which 
 embodied the fundamental principles of the English Constitution and 
 of the ancient franchises of the English nation, was confirmed with 
 some slight but important amendments in a regular act of the Legis- 
 lature. This Act is known as the Bill of Rights. The Convention 
 Parliament had met on the 22nd of January, 1688, and a week later, 
 the Commons passed their celebrated Resolution, in which, as James 
 II. had abdicated the throne, it was deemed inconsistent with the 
 safety of the kingdom that a Protestant government should be in the 
 hands of a " Popish Prince." After conferences between William and 
 the political leaders, as well as between the two Houses, it was re- 
 solved that a Committee of the Commons should consider what steps 
 it might be advisable to take to secure law and liberty against the 
 aggressions of future sovereigns. 
 
 The Declaration of Right was accordingly drawn up. 
 
 In studying the Bill of Rights it is necessary to understand 
 thoroughly the reaction against Puritanism after the Restoration and 
 the subsequent revival of Protestant feeling produced by James IT.'s 
 policy toward the church and the government. The position of 
 William of Orange on the continent, both as military hero and politi- 
 cal governor, must also be taken into consideration. All later Bills of 
 Rights take their key-note from this famous document, of which 
 Taswell-Langmead speaks as " the third great charter of English 
 liberty and the coping-stone of the Constitutional Building." 
 
 For Outlines and Material see Appendix A. 
 
 DOCUMENT 
 The Bill of Rights Oct. 25 (1689) 
 
 The Statutes An AcT FOR DECLARING THE ElGHTS AND LlBER- 
 
 qfthe Realm. xiES OF THE SuBJECT, AND SETTLING THE SuCCES- 
 VI. 142-145. ^ 
 
 SIGN OF THE CrOWN. 
 
1689] TEXT 123 
 
 Whereas the Lords Spiritual and Temporal, and Based upon 
 Commons, assembled at Westminster, lawfully, ^^}'^- I^^clara- 
 fully, and freely representing all the estates of the Eight which 
 people of this realm, did upon the Thirteenth day accompanied 
 of February, in the j^ear of our Lord One Thousand ^^^g Crown to 
 Six Hundred Eighty-eight, present unto their Majes- William and 
 ties, then called and known by the names and style iq^j^'cq 
 of William and Mary, Prince and Princess of Orange, 
 being present in their proper persons, a certain De- 
 claration in writing, made by the said Lords and 
 Commons, in the words following, viz.: — 
 
 " Whereas the late King James II., by the assist- 
 ance of divers evil counsellors, judges, and minis- 
 ters employed by him, did endeavour to subvert 
 and extirpate the Protestant religion, and the laws 
 and liberties of this kingdom : — 
 
 (1.) By assuming and exercising a power of dis- In early 
 
 pensing with and suspending of laws, and the execu- times the 
 . , . , J. -r. T dispensing 
 
 tion of laws, without consent of Parliament. power had 
 
 (2.) By committing and prosecuting divers worthy been con- 
 
 sidered leo^al 
 prelates, for humbly petitioning to be excused from ° 
 
 concurring to the said assumed power. 
 
 (3.) By issuing and causing to be executed a 
 commission under the Great Seal for erecting a 
 court, called the Court of Commissioners for Eccle- 
 siastical Causes. 
 
 (4. ) By levying money for and to the use of the Compare the 
 Crown by pretence of prerogative, for other time following 
 and in other manner than the same was granted by l^ith the^^ 
 Parliament. Declaration 
 
 (5.) By raising and keeping a standing army J-ndepend- 
 within this kingdom in time of peace, without con- 
 sent of Parliament, and quartering soldiers contrary 
 to law. 
 
 (6.) By causing several good subjects, being 
 Protestants, to be disarmed, at the same time when 
 Papists were both armed and employed contrary to 
 law. 
 
124 THE BILL OF RIGHTS [Ch. IX 
 
 (7.) By violating the freedom of election of 
 members to serve in Parliament. 
 
 (8.) By prosecutions in the Court of King's Bench 
 for matters and causes cognizable only in Parlia- 
 ment; and by divers other arbitrary and illegal 
 causes. 
 
 (9.) And whereas of late years, partial, corrupt, 
 and unqualified persons have been returned, and 
 served on juries in trials, and particularly diverse 
 jurors in trials for high treason, which were not 
 freeholders. 
 
 (10.) And excessive bail hath been required of 
 persons committed in criminal cases, to elude the 
 benefit of the laws made for the liberty of the 
 subjects. 
 
 (11.) And excessive fines have been imposed; 
 and illegal and cruel punishments inflicted. 
 
 (12.) And several grants and promises made of 
 fines and forfeitures, before any conviction or judg- 
 ment against the persons upon whom the same were 
 to be levied. 
 
 All which are utterly and directly contrary to 
 the known laws and statutes, and freedom of this 
 realm. 
 
 And whereas the said late King James II. having 
 abdicated the government, and the throne being 
 thereby vacant, his Highness the Prince of Orange 
 (whom it hath pleased Almighty God to make the 
 glorious instrument of delivering this kingdom from 
 Popery and arbitrary power) did (by the advice of 
 the Lords Spiritual and Temporal, and diverse prin- 
 cipal persons of the Commons) cause letters to be 
 Summons to written to the Lords Spiritual and Temporal, being 
 *r^ p^T?'^' Protestants, and other letters to the several coun- 
 ment. ties, cities, universities, boroughs, and cinque ports, 
 
 for the choosing of such persons to represent them, 
 as were of right to be sent to Parliament, to meet 
 and sit at Westminster upon the two-and- twentieth 
 day of January, in this year one thousand six hun- 
 
1689] TEXT 125 
 
 dred eighty and eight, in order to such an estab- 
 lishment, as that their religion, laws, and liberties 
 might not again be in danger of being subverted ; 
 upon which letters elections have been accordingly 
 made. 
 
 And thereupon the said Lords Spiritual and Tem- 
 poral, and Commons, pursuant to their respective 
 letters and elections, being now assembled in a full 
 and free representation of this nation, taking into 
 their most serious consideration the best means for 
 attaining the ends aforesaid, do in the first place 
 (as their ancestors in like case have usually done), 
 for the vindicating and asserting their ancient rights 
 and liberties, declare : — 
 
 (1.) That the pretended power of suspending of 
 laws, or the execution of laws, by regal authority, 
 without consent of Parliament, is illegal. 
 
 (2.) That the pretended power of dispensing with 
 laws, or the execution of laws by regal authority, as 
 it hath been assumed and exercised of late, is illegal. 
 
 (3.) That the commission for erecting the late 
 Court of Commissioners for Ecclesiastical causes, 
 and all other commissions and courts of like nature, 
 are illegal and pernicious. 
 
 (4.) That levying money for or to the use of the 
 Crown by pretence of prerogative, without grant of 
 Parliament, for longer time or in other manner than 
 the same is or shall be granted, is illegal. 
 
 (5.) That it is the right of the subjects to petition 
 the King, and all commitments and prosecutions for 
 such petitioning are illegal. 
 
 (6.) That the raising or keeping a standing army 
 within the kingdom in time of peace, unless it be 
 with consent of Parliament, is against law. 
 
 (7.) That the subjects which are Protestants From 1695 to 
 may have arms for their defence suitable to their l'^28, effort to 
 conditions, and as allowed by law. articles. 
 
 (8.) That election of members of Parliament Great in- 
 ought to be free. 
 
126 
 
 THE BILL OF RIGHTS 
 
 [Ch. IX 
 
 crease of 
 bribery, time 
 Geo. III. 
 This act first 
 enforced in 
 1407. 
 
 See Magna 
 Cliarta, Art. 
 xxxvi. 
 
 This is the 
 first official 
 statement 
 that the 
 
 (9. ) That the freedom of speech, and debates or 
 proceedings in Parhament, ought not to be im- 
 peached or questioned in any court or place out 
 of Parliament. 
 
 (10.) That excessive bail ought not to be re- 
 quired, nor excessive fines imposed; nor cruel and 
 unusual punishments inflicted. 
 
 (11.) That jurors ought to be duly impanelled 
 and returned, and jurors which pass upon men in 
 trials for high treason ought to be freeholders. 
 
 (12.) That all grants and promises of fines and 
 forfeitures of particular persons before conviction 
 are illegal and void. 
 
 (13.) And that for redress of all grievances, and 
 for the amending, strengthening, and preserving of 
 the laws. Parliament ought to be held frequently. 
 
 And they do claim, demand, and insist upon all 
 and singular the premises, as their undoubted rights 
 and liberties ; and that no declarations, judgments, 
 doings or proceedings, to the prejudice of the people 
 in any of the said premises, ought in any wise to be 
 drawn hereafter into consequence or example. 
 
 To which demand of their rights they are particu- 
 larly encouraged by the declaration of his Highness 
 the Prince of Orange, as being the only means for 
 obtaining a full redress and remedy therein. 
 
 Having therefore an entire confidence that his 
 said Highness the Prince of Orange will perfect the 
 deliverance so far advanced by him, and will still 
 preserve them from the violation of their rights, 
 which they have here asserted, and from all other 
 attempts upon their religion, rights, and liberties : 
 
 II. The said Lords Spiritual and Temporal, and 
 Commons, assembled at Westminster, do resolve, 
 that William and Mary, Prince and Princess of 
 Orange, be, and be declared, King and Qneen of 
 England, France, and Ireland, and the dominions 
 thereunto belonging, to hold the crown and royal 
 dignity of the said kingdoms and dominions to them 
 
1689] TEXT 127 
 
 the said Priace and Princess during their lives, and crown of 
 the life of the survivor of them ; and that the~sole bJcoTferred 
 and full exercise of the regal power be only in, by Parlia- 
 and executed by, the said Prince of Orange, in the ^^^^^t. 
 names of the said Prince and Princess, during their 
 joint lives ; and after their deceases, the said Crown 
 and royal dignity of the said kingdoms and domin- 
 ions to be to the heirs of the body of the said Prin- 
 cess ; and for default of such issue to the Princess 
 Anne of Denmark, and the heirs of her body ; and 
 for default of such issue to the heirs of the body of 
 the said Prince of Orange. And the Lords Spirit- 
 ual and Temporal, and Commons, do pray the said 
 Prince and Princess to accept the same accordingly. 
 
 III. And that the oaths hereafter mentioned be 
 
 taken by all persons of whom the oaths of allegiance New oath of 
 and supremacy might be required by law, instead of allegiance, 
 them ; and that the said oaths of allegiance and premacy 
 supremacy be abrogated. oath. 
 
 "I, A. B., do sincerely promise and swear, That 
 I will be faithful and bear true allegiance to their 
 Majesties King William and Queen Mary : 
 " So help me God." 
 
 " I, A. B., do swear, That I do from my heart 
 abhor, detest, and abjure as impious and heretical Supremacy. 
 that damnable doctrine and position, that Princes 
 excommunicated or deprived by the Pope, or any 
 authority of the See of Rome, may be deposed or 
 murdered by their subjects, or any other whatso- 
 ever. And I do declare. That no foreign prince, 
 person, prelate, state, or potentate hath, or ought 
 to have, any jurisdiction, power, superiority, pre- 
 eminence, or authority, ecclesiastical or spiritual, 
 within this realm : 
 
 "So help me God!" 
 
 IV. Upon which their said Majesties did accept Agreement 
 the Crown and royal dignity of the kingdoms of between 
 England, France, and Ireland, and the dominions Parliament, 
 thereunto belonging, according to the resolution 
 
128 THE BILL OF RIGHTS [Ch. IX 
 
 and desire of the said Lords and Commons con- 
 tained in the said declaration. 
 
 V. And thereupon their Majesties were pleased, 
 that the said Lords Spiritual and Temporal, and 
 Commons, being the two Houses of Parliament, 
 should continue to sit, and with their Majesties' 
 royal concurrence make effectual provision for the 
 settlement of the religion, laws and liberties of this 
 kingdom, so that the same for the future might not 
 be in danger again of being subverted ; to which the 
 said Lords Spiritual and Temporal, and Commons, 
 did agree and proceed to act accordingly. 
 
 VI. Now in pursuance of the premises, the said 
 Lords Spiritual and Temporal, and Commons, in 
 
 See Declara- Parliament assembled, for the ratifying, confirming, 
 tion of Inde- and establishing the said declaration, and the 
 pen en e. articles, clauses, matters, and things therein con- 
 tained, by the force of a law made in due form by 
 authority of Parliament, do pray that it may be 
 declared and enacted, That all and singular the 
 rights and liberties asserted and claimed in the said 
 declaration are the true, ancient, and indubitable 
 rights and liberties of the people of this kingdom, 
 and so shall be esteemed, allowed, adjudged, 
 deemed, and taken to be, and that all and every the 
 particulars aforesaid shall be firmly and strictly 
 holden and observed, as they are expressed in the 
 said declaration; and all officers and ministers 
 whatsoever shall serve their Majesties and their 
 successors according to the same in all times to 
 come. 
 
 VII. And the said Lords Spiritual and Temporal, 
 and Commons, seriously considering how it hath 
 pleased Almighty God, in his marvellous provi- 
 dence, and merciful goodness to this nation, to pro- 
 vide and preserve their said Majesties' royal persons 
 most happily to reign over us upon the throne of 
 their ancestors, for which they render unto Him 
 from the bottom of their hearts their humblest 
 
1689] TEXT 129 
 
 thanks and praises, do truly, firmly, assuredly, and 
 in the sincerity of their hearts, think, and do here- 
 by recognize, acknowledge, and declare, that King 
 James II. having abdicated the Government, and 
 their Majesties having accepted the Crown and 
 royal dignity aforesaid, their said Majesties did be- 
 come, were, are, and of right ought to be, by the 
 laws of this realm, our sovereign liege Lord and 
 Lady, King and Queen of England, France, and 
 Ireland, and the dominions thereunto belonging, in 
 and to whose princely persons the royal state, 
 crown, and dignity of the same realms, with all 
 honours, styles, titles, regalities, prerogatives, 
 powers, jurisdictions, and authorities to the same 
 belonging and appertaining, are most fully, right- 
 fully, and entirely invested and incorporated, 
 united, and annexed. 
 
 VIII. And for preventing all questions and divi- 
 sions in this realm, by reason of any pretended Limitations 
 titles to the Crown, and for preserving a certainty ^^ settlement 
 in the succession thereof, in and upon which the 
 unity, peace, tranquillity, and safety of this nation 
 doth, under G-od, wholly consist and depend, the 
 said Lords Spiritual and Temporal, and Commons, 
 do beseech their Majesties that it may be enacted, 
 established, and declared, that the Crown and regal 
 government of the said kingdoms and dominions, 
 with all and singular the premises thereunto be- 
 longing and appertaining, shall be and continue to 
 their said Majesties, and the survivor of them, dur- 
 ing their lives, and the life of the survivor of them. 
 And that the enth-e, perfect, and full exercise of 
 the regal power and government be only in, and 
 executed by, his Majesty, in the names of both their 
 Majesties, during their joint lives ; and after their 
 deceases the said Crown and premises shall be and 
 remain to the heirs of the body of her Majesty : and 
 for default of such issue, to her Eoyal Highness the 
 Princess Anne of Denmark, and the heirs of her 
 
130 
 
 THE BILL OF RIGHTS 
 
 [Ch. IX 
 
 See Act of 
 Settlement. 
 
 Exclusion 
 clause. 
 
 body ; aud for default of such issue, to the heirs of 
 the body of his said Majesty : And thereunto the 
 said Lords Spiritual and Temporal, and Commons, 
 do, in the name of all the people aforesaid, most 
 humbly and faithfully submit themselves, their heirs 
 and posterities, forever : and do faithfully promise, 
 That they will stand to, maintain, and defend 
 their said Majesties, and also the limitation and 
 succession of the Crown herein specified and con- 
 tained, to the utmost of their powers, with their 
 lives and estates, agaiust all persons whatsoever 
 that shall attempt anything to the contrary. 
 
 IX. And whereas it hath been found by experi- 
 ence, that it is inconsistent with the safety and wel- 
 fare of this Protestant kingdom, to be governed by 
 a Popish prince, or by any king or queen marrying a 
 Papist, the said Lords Spiritual and Temporal, and 
 Commons, do further pray that it may be enacted, 
 That all and every person and persons that is, are, 
 or shall be reconciled to, or shall hold communion 
 with, the See or Church of Rome, or shall profess 
 the Popish religion, or shall marry a Papist, shall 
 be excluded, and be for ever incapable to inherit, 
 possess, or enjoy the Crown and Government of 
 this realm, and Ireland, and the dominions there- 
 unto belonging, or any part of the same, or to have, 
 use, or exercise any regal power, authority, or juris- 
 diction within the same ; and in all and every such 
 case or cases the people of these realms shall be and 
 are hereby absolved of their allegiance ; and the said 
 Crown and Government shall from time to time 
 descend to, and be enjoyed by, such person or 
 persons, being Protestants, as should have inherited 
 and enjoyed the same, in case the said person or 
 persons so reconciled, holding communion, or pro- 
 fessing, or marrying, as aforesaid, were naturally 
 dead. 
 
 X. And that every King and Queen of this 
 realm, who at any time hereafter shall come to and 
 
1689] TEXT ISI 
 
 succeed in the Imperial Crown of this kingdom, Future Dec- 
 shall, on the first day of the meeting of the first laration. 
 Parliament, next after his or her coming to the 
 Crown, sitting in his or her throne in the House of 
 Peers, in the presence of the Lords and Commons 
 therein assembled, or at his or her coronation, be- 
 fore such person or persons who shall administer 
 the coronation oath to him or her, at the time of 
 his or her taking the said oath (which shall first 
 happen) , make, subscribe, and audibly repeat the 
 declaration mentioned in the statute made in the 
 thirteenth year of the reign of King Charles II., 
 intituled " An act for the more effectual preserving 
 the King's person and Government, by disabling 
 Papists from sitting in either House of Parliament." 
 But if it shall happen, that such King or Queen, upon 
 his or her succession to the Crown of this realm, 
 shall be under the age of twelve years, then every 
 such King or Queen shall make, subscribe, and 
 audibly repeat the said declaration at his or her coro- 
 nation, or the first day of meeting of the first Par- 
 liament as afoi'esaid, which shall first happen after 
 such King or Queen shall have attained the said 
 age of twelve years. 
 
 XI. All which their Majesties are contented and 
 pleased shall be declared, enacted, and established Enacting 
 by authority of this present Parliament, and shall Clause, 
 stand, remain, and be the law of this realm for 
 
 ever ; and the same are by their said Majesties, by 
 and with the advice and consent of the Lords 
 Spiritual and Temporal, and Commons, in Parlia- 
 ment assembled, and by the authority of the same, 
 declared, enacted, or established accordingly. 
 
 XII. And be it further declared and enacted by 
 
 the authority aforesaid, That from and after this Dispensing 
 
 present session of Parliament, no dispensation by po^er re- 
 
 T ^ . moved. 
 
 non obstante of or to any statute, or any part there-. 
 
 of, shall be allowed, but that the same shall be held 
 
 void and of no effect, except a dispensation be 
 
132 THE BILL OF RIGHTS [Ch. IX 
 
 allowed of in such statute, and except in such cases 
 as shall be specially provided for by one or more 
 bill or bills to be passed during this present session 
 of Parliament. 
 
 XIII. Provided that no charter, or grant, or par- 
 don granted before the three-and-twentieth day of 
 October, in the year of our Lord One thousand six 
 hundred eighty-nine, shall be any ways impeached 
 or invalidated by this Act, but that the same shall 
 be and remain of the same force and effect in law, 
 and no other, than as if this Act had never been 
 made. 
 
 CONTEMPORARY EXPOSITION 
 
 BISHOP BURNET (1724) 
 
 There was a bill of great importance sent up by the Com- 
 mons to the Lords : ... it was a bill, declaring the rights and 
 liberties of England, and the succession to the Crown, as had 
 been agreed by both houses of parliament, to the king and 
 queen and their issue. . . . The bill passed without opposition 
 in the beginning of the next session, which I mention here that 
 I might end this matter all at once. 
 
 Gilbert Bdrnet, History of His Own Time. 533. 
 
 CRITICAL COMMENT 
 
 LUFFMAN (1792) 
 
 The Constitution of England, as established under the 
 sacred authority of Magna Charta, had, at the crisis which pro- 
 duced the Bill of Rights, become very much impaired by the 
 many encroachments which some of the succeeding kings from 
 the time of John made upon its equitable form. . . . The 
 moment that the Declaration of Right was made on the behalf 
 of the English People and acknowledged by the Prince of 
 Orange and his consort as the supreme law, in future to be 
 observed, at that instant the constitution was renovated, the 
 power of the crown was acknowledged to flow from its only 
 
1792-1895] CRITICAL COMMENT 133 
 
 natural source, the people, and a reciprocal interest, proceeding 
 from allegiance on one part and protection on the other, formed 
 the guarantee of the monarch's prerogative and the people's 
 freedom. 
 
 J. LxjffmAjS', Citizen and Goldsmith^ a pamphlet. 
 GUIZOT (1842) 
 
 AH England, except a very small party, was at this time 
 arrayed against James ; and it seems very certain, that, under 
 some form or other, the revolution of 1688 must have been 
 accomplished. But at this crisis causes even superior to the 
 internal state of England conduced to this event. It was 
 European as well as English. It is at this point that the Eng- 
 lish revolution links itself, by facts, and independently of the 
 influence of its example, to the general course of European 
 civilization. 
 
 GuizOT, General History of Civilization from the Fall of the Roman Empire 
 to the French Revolution. 285. 
 
 HACAULAT (1849) 
 
 This revolution, of all revolutions the least violent, has been 
 of all revolutions the most beneficent. It finall}^ decided the 
 great question whether the popular element which had, ever 
 since the age of Fitz waiter and De Montfort, been found in the 
 English polity, should be destroyed by the monarchical element, 
 or should be suffered to develop itself freely, and to become 
 dominant. The strife between the two principles had been 
 long, fierce, and doubtful. It had lasted through four reigns. 
 It had produced seditions, impeachments, rebellions, battles, 
 sieges, proscriptions, judicial massacres. Sometimes liberty, 
 sometimes royalty, had seemed to be on the point of perishing. 
 During many years one half of the energy of England had been 
 employed in counteracting the other half. The executive power 
 and the legislative power had so effectually impeded each other 
 that the state had been of no account in Europe. The king-at- 
 arms, who proclaimed William and Mary before Whitehall Gate, 
 did in truth announce that this great struggle was over ; that 
 there was entire union between the throne and the Parliament ; 
 that England, long dependent and degraded, was again a power 
 
134 THE BILL OF RIGHTS [Ch. IX 
 
 of the first rank ; that the ancient laws by which the prerogative 
 was bounded would thenceforth be held as sacred as the pre- 
 rogative itself, and would be followed out to all their conse- 
 quences ; that the executive administration would be conducted 
 in conformity with the sense of the representatives of the nation ; 
 and that no reform which the two houses should, after mature 
 deliberation, propose, would be obstinately withstood by the 
 sovereign. The Declaration of Rights, though it made nothing 
 law which had not been law before, contained the germ of the 
 law which gave religious freedom to the Dissenter, of the law 
 which secured the independence of the judges, of the law which 
 limited the duration of Parliaments, of the law which placed the 
 liberty of the press under the protection of juries, of the law 
 which prohibited the slave-trade, of the law which abolished the 
 sacramental test, of the law which relieved the Roman Catholics 
 from civil disabilities, of the law which reformed the represen- 
 tative system, of every good law which has been passed during 
 a hundred and sixty years, of every good law which may here- 
 after, in the course of ages, be found necessary to promote the 
 public weal, and to satisfy the demands of public opinion. 
 
 T. B. Macaulay, History of England. III. 518. 
 J. R. GREEN (1874) 
 
 The Declaration of Rights was turned into the Bill of Rights 
 by the Convention which had now become a Parliament, and the 
 passing of this measure in 1689 restored to the monarchy the 
 character which it had lost under the Tudors and Stuai-ts. . . . 
 Since their day [William and Mary] no English sovereign has 
 been able to advance any claims to the crown save a claim 
 which has rested on a particular clause in a particular Act of 
 Parliament. . . . An English monarch is now as much the 
 creature of an Act of Parliament as the petty tax-gatherer in 
 his realm. 
 
 J. K. Green, Short History of the English People. 688-689. 
 
 TASWELL-LANGMEAD (1S79) 
 
 The Revolution of 1688 marks at once a resting-place and a 
 fresh point of departure in the history of the English Constitu- 
 tion. The Bill of Rights was a summing up, as it were, and 
 
1792-1895] CRITICAL COMMENT 135 
 
 final establishment of the Legal bases of the Constitution. 
 With Magna Charta and the Petition of Riglit it forms the 
 Legal Constitutional Code to which no additions of equal im- 
 portance (except the Constitutional provisions of the Act of 
 Settlement to be presently noticed) have since been made by 
 Legislative enactment. Political progress has indeed, from 
 time to time, left its mark on the statute-book, in laws the 
 importance of which can hardly be exaggerated. But even the 
 greatest of these enactments . . . have been of tlie nature of 
 amendments to the machinery of the Constitution, supplying 
 defects and correcting abuses, rather than alterations in the 
 great Constitutional principles finally established by the 
 Revolution. 
 
 T. P. Taswell-Langmead, English Constitutional History. 550. 
 
 HANNIS TAYLOR (1889) 
 
 Ten days after the accession of William and Mary, the 
 royal assent was given to a bill which declared the convention 
 a parliament, " notwithstanding any fault of writ or writs of 
 summons ; " and on the 20th of August, after seven months 
 of active work, it took a recess until the 19th of October, 
 Then it was that the act was passed which turned the Declara- 
 tion of Right into a formal Bill of Rights, whereby two some- 
 what important additions were made to the original instrument. 
 
 The Declaration of Right thus put forth was a summing up 
 in a dogmatic form of that code of positive law regulating the 
 prerogatives of the crown, the privileges of parliament, and the 
 liberty of the subject now generally known as " The Law of 
 the Constitution," as distinguished from that body of political 
 maxims, of silent understandings, undefined either by common 
 or statute law, which have been invented since the beginning of 
 the reign of William III. 
 
 Hannis Taylor, Origin and Growth of the English Constitution. 11.418-415. 
 J. K. HOSMER (1890) 
 
 The monarchy as limited in the thirteenth century had come 
 down to the seventeenth century. Parliament had behind it 
 a past of four hundred years. The constitution was not 
 
136 THE BILL OF RIGHTS [Ch. IX 
 
 formulated, but its principles, scattered throughout time- 
 honoured statutes, were engraven on the hearts of Englishmen. 
 No one of its principles was based upon precedents more 
 ancient or more frequent than that Kings reigned by a right 
 in no respect differing from that by which knights-of-the-shire 
 exercised authority in behalf of their constituents. The Bill of 
 Rights simply affirmed this principle. Not a single new right 
 was given to the people ; the whole body of English law was 
 unchanged ; all was conducted in obedience to the ancient 
 
 formalities. 
 
 J. K. HosMER, ^??/7/o-;S'aarow Freedom. 169. 
 
 STEVENS (1894) 
 
 The Bill of Rights of the time of William and Mary finally 
 declares, " that levying money for or to the use of the crown by 
 pretence of prerogative without grant of Parliament for longer 
 time, or in other manner than the same is or shall be granted, 
 is illegal." It is not too much to say, that the principle lies at 
 the foundation of all others in the English constitution, and is 
 a chief source of modern liberties. 
 
 C. E. Stevens, Sources of the Constitution. 114. 
 RANSOME (1895) 
 
 The Declaration of Right, which afterwards was turned into 
 an act of parliament under the title of the Bill of Rights, is one 
 of the most important documents in English history. It 
 brought to a close the great struggle between the king and the 
 parliament, which had lasted nearly one hundred years, by 
 defining the law on a number of disputed points, all of which 
 had, during this period, been matters of protest on the side of 
 the parliament. After taking, one by one, the chief unconsti- 
 tutional acts of James II., it proceeded to make the following 
 declarations: . . . 
 
 The effect of the Revolution was threefold. In the first 
 place, it destroyed the Stuart theory of the divine right of 
 kings, enunciated in its crudest form by Filmer in his de Patri- 
 arclid, by setting up a king and queen who owed their position 
 to the choice of parliament. In the second, it gave an 
 opportunity for reasserting the principles of the English con- 
 
1792-1895] CRITICAL COMMENT 137 
 
 stitution which it had been the aim of the Stuarts to set aside. 
 In the third, it began what may be called the reign of Parlia- 
 ment. Up to the Revolution there is no doubt that the guiding 
 force in directing the policy of the nation had been the will of 
 the king. Since the Revolution the guiding force has been the 
 will of the parliament. 
 
 Ctkil E.ANSOME, Advanced History of England. 664, 665. 
 
138 ACT OF SETTLEMENT [Ch. X 
 
 Chaptek X 
 ACT OF SETTLEMENT 
 
 SUGGESTIONS 
 
 The Act of Settlement itself reads, " An act for the further limitation 
 of the Crown and better securing the Rights and Liberties of the 
 Subject." The Constitutional Provisions are the articles most impor- 
 tant ; they settled the question of the succession once and for all 
 time. In 1701 the death of William III.'s only son, a lad of twelve 
 years, brought matters to a climax. Tories and Whigs, alike, deemed 
 it imperative to act immediately and unanimously. Thus, by pres- 
 sure of events, the two Houses passed the famous Act of Settlement 
 by which, in case of the death of both Anne and William without 
 heirs, the crown was settled upon Sophia, the granddaughter of 
 James I. The whole question of the Hanoverian Succession was 
 thus placed outside of the political party factions of that reign, and 
 all succeeding ones. 
 
 Although the Bill of Rights was supposed in itself to settle the 
 question of succession, it was deemed wise in the reign of Queen 
 Anne to draw up the Act of Settlement, a statute important, not only 
 on account of the group of constitutional provisions embodied in it, 
 but also as the " Title deed " of the reigning dynasty, and a veritable 
 " Original Contract between the Crown and the People." In study- 
 ing the period to which the document forms the central thought, too 
 much stress cannot be laid upon the responsibility taken by the gov- 
 ernment for the support of the Established Church, and its doctrines. 
 The History of the Anglican Church does not fall within the field of 
 this volume, but the vitality of State and Church are one. 
 
 For Outlines and Material, see Appendix A. 
 
 DOCUMENT 
 
 Constitutional Provisions in the Act of Settlement (1700-1701) 
 
 Transliter- 1- That whosoever shall hereafter come to the 
 
 ated from the pogggssion of this Crown shall join in communion 
 Realm^ VIL with the Church of England as by law established. 
 747-750, 2. That in case the Crown and Imperial dignity 
 
1700-1701] TEXT 139 
 
 of this realm shall hereafter come to any person 
 not being a native of this kingdom of England, 
 this nation be not obliged to engage in any war 
 for the defence of any dominions or territories 
 which do not belong to the Crown of England, 
 without the consent of Parliament. 
 
 3. That no person who shall hereafter come to Eepealed in 
 the possession of this Crown shall go out of the t^^^ first year 
 dominions of England, Scotland, or Ireland, with- reign. '' 
 out consent of Parliament. 
 
 4. That from and after the time that the further 
 
 limitation by this Act shall take effect, all matters Eepealed by 
 
 and things relating to the well governing of this ^ 4^ne, c. 8, 
 
 6 Anne c 7. 
 kingdom, which are properly cognisable in the Privy ' 
 
 Council by the laws and customs of this realm, shall 
 be transacted there, and all resolutions taken there- 
 upon shall be signed by such of the Privy Council 
 as shall advise and consent to the same. 
 
 5. That, after the said limitation shall take effect 
 
 as aforesaid, no person born out of the kingdoms This article 
 of England, Scotland, or Ireland, or the dominions helped to 
 thereunto belonging (although to be naturalized or parliamen- 
 made a denizen — except such as are born of Eng- tary consti- 
 lish parents), shall be capable to be of the Privy giu Qf 
 Council, or a member of either House of Parliament, Eights. 
 or to enjoy any office or place of trust, either civil 
 or military, or to have any grant of lands, tene- 
 ments, or hereditaments, from the Crown, to him- 
 self, or to any other or others in trust for him. 
 
 6. That no person who has an office or place of Eepealed in 
 profit under the King, or receives a pension ivova ^^^^^^Y 
 
 the Crown, shall be capable of serving as a member Anne's reign, 
 of the House of Commons. 
 
 7. That, after the said limitation shall take effect This article 
 „ • 1 • J 5 • • 1 1 7 . aided the 
 
 as aforesaid, judges commissions be made quamdiu future inde- 
 
 se bene gesserint, and their salaries ascertained pendence of 
 and established; but upon the address of both ^^^ ^J^gg^jf ® 
 Houses of Parliament, it may be lawful to remove were they de- 
 them. pendentupon 
 
140 ACT OF SETTLEMENT [Ch. X 
 
 the king's 8. That no pardon under the Great Seal of Eng- 
 
 Spcfn "'good* land be pleadable to an impeachment by the Com- 
 behavior." mons in Parliament. 
 
 CONTEMPORARY EXPOSITION 
 
 BISHOP BURNET (1724) 
 
 The matter that occasioned the longest and warmest debates 
 in both houses was an act abjuring the pretended Prince of 
 Wales, and forswearing to the king by the title of rightful 
 and lawful king, and to his heirs, according to the act of settle- 
 ment. . . . The design of this act was to discover to all, both 
 at home and abroad, how unanimously the nation concurred in 
 abjuring the pretended Prince of Wales. 
 
 Gilbert Burnet, History of His Own Time. 698. 
 
 CRITICAL COMMENT 
 
 BLACKSTONE'S COMMENTARIES (1765) 
 
 The absolute rights of every Englishman, which taken in a 
 political and extensive sense, are usually called their liberties, 
 and as they are founded on nature and reason, so they are 
 co-eval with our form of government. . . . The vigour of our 
 free constitution has always delivered the nation from embar- 
 rassments . . • and their fundamental articles have been, from 
 time to time, asserted in Parliament as often as they were 
 thought to be in danger. . . . First, by the G-reat Charter of 
 Liberties, which was obtained sword in hand from King John. 
 . . . Afterwards by the Statute called Confirmatio Chartarum 
 whereby the G-reat Charter is directed to be allowed as the 
 common law. . . . Then after a long interval, by the Petition 
 of Right, which was a parliamentary declaration of the liber- 
 ties of the people. ... By the many salutary laws, particu- 
 larly the Habeas Corpus Act, passed under Charles II. To these 
 succeeded the Bill of Rights . . . which declaration concludes 
 in these remarkable words; "and they do claim, demand, and 
 insist upon all and singular the premises, as their undoubted 
 rights and liberties." . . . Lastly, these liberties were again 
 
1765-1895] CRITICAL COMMENT 141 
 
 asserted at the commencement of the present century in 
 the Act of Settlement, whereby the crown was limited to his 
 present Majesty's illustrious house ; and some new provisions 
 were added at the same fortunate era, for better securing our 
 religion, laws, and liberties, which the statute declares to be 
 " the birthright of the people of England," according to the 
 ancient doctrine of the common law. 
 
 Sir Wm. Blackstone, Commentaries on the Laws of England. I. 127-129. 
 DICEY (1885) 
 
 The descent of the Crown was varied and finally fixed under 
 the Act of Settlement (12 & 13 Will. III. c. 2) ; the Queen 
 occupies the throne under a parliamentary title : her claim to 
 reign depends upon and is the result of a statute. This is a 
 proposition which at the present day no one is inclined either 
 to maintain or to dispute ; but a glance at the Statute-book 
 shows that not two hundred years ago Parliament had to insist 
 strenuously upon the principle of its own lawful supremacy. 
 
 Albert V. Dicey, Introduction to the Studij of the Law of the Constitution. 41. 
 
 RANSOME (1895) 
 
 The circumstance that the Act of Settlement was passed by 
 a parliament in which the Tories were predominant, turned out 
 to be of great importance, for it committed the Tories, as a 
 party, to the principle of the Hanoverian succession, and as it 
 was an arrangement heartily approved b}^ the Whigs, the matter 
 was thus placed outside the lines of party politics. 
 
 Cyril Eansome, Advanced History of England. 699. 
 
142 SPIRIT OF COLONIAL RIGHTS [Ch. XI 
 
 Chaptee XI 
 
 SPIRIT OF COLONIAL RIGHTS (1731-1765) 
 
 SUGGESTIONS 
 
 As we approacli the intensive study of the Colonial period, no one 
 English statute or New England charter stands out peculiarly as 
 representative of the spirit of political freedom, which was a product 
 of the system of government in the American Colonies. The Defence 
 of the Neiv England Charters, too long to use in full, touches upon 
 many subjects not purely constitutional. 
 
 Jeremiah Dummer was an able exponent of New England's princi- 
 ples. The existing difficulties which had arisen are as well set forth 
 in his " Defence "as in any one document of the period. The con- 
 temporary exposition gathered about this document is not in itself so 
 closely critical of the articles of the document as with its spirit. From 
 this time until after the formation of the Articles of Confederation it 
 is the general movement of the times, and not the precise criticism of 
 any one document which dominates the thought of the contemporary 
 writer. 
 
 For Outlines and Material, see Appendix A. 
 
 DOCUMENT 
 Extracts from "A Defence of the New-England Charters" (1721) 
 
 A Defence by Jer[emiah] Dummer. 
 
 %fl^X" To the Right Honourable, the Lord Carteret, one of 
 
 Charters, His Majesty's Principal Secretaries of State. 
 1721 3-74. 
 
 ' * Invited and encouraged by these advantages, a 
 
 Puritan considerable number of persons dissenting from the 
 
 1628^^^*^°°' discipline of the established church, though agreeing 
 with it in doctrine, removed into those remote 
 regions, upon no other view than to enjo}' the liberty 
 of their consciences without hazard to themselves, 
 and offence to others. Thus the colonies went on 
 
1721] TEXT 143 
 
 increasing and flourishing, in spite of all difficulties, 
 till the year 1684, when the city of London lost its 
 charter, and most of the other corporations in Eng- Magna 
 land, influenced by fear or flattery, complimented £?iyy'^' '^^*'' 
 King Charles with a surrender of theirs. In this 
 general ruin of charters at home, it could not be 
 expected that those in America should escape. It 
 was then that a quo warranto was issued against the 
 governour and company of the Massachusets Bay, 
 and soon after a judgment was given against them 
 in Westminster Hall. At the same time Sir Edmund 
 Andros, then the King's governour of New England, 
 did by order from court repair to Hartford, the The story of 
 capital of Connecticut, with armed attendants, and the " Charter- 
 forcibly seized their charter for the King. Rhode ^^pon the in- 
 Island, finding there was no remed}' to be had, made cident that 
 a vertue of necessity, and peaceably resigned theirs. ^®g carried 
 But as soon as the news arrived of the happy off and con- 
 revolution in England, these two last mentioned cealed when 
 governments reassumed their charters, and put taken, 
 themselves under the old form of administration, in 
 which they have continued ever since. The gov- Accom- 
 
 ernment of the Massachusets, cautious of offending phsned 
 
 . easily upon 
 
 their superiours at home, and considering there was removal of 
 
 a iudgment against them in the court of Chancery, Andros in 
 
 1690. 
 though most unfairly and illegaly obtained, did not 
 
 think it adviseable to make this step ; but sent She was too 
 
 agents to court to supplicate, in a humble manner, strong and 
 1 • n , • , rn 1 • too proud to 
 
 tile restoration of their charter, lo what misman- adopt the 
 
 agement, or other cause it was owing, that they did conciliatory 
 
 • coiirsG of 
 
 not obtain it, and that this loyal corporation was co^n. and 
 
 the only one either in Old or New England that E. I. 
 did not recover its lost liberty under our late glo- 
 rious deliverer King William, 'tis now too late, and 
 therefore to no purpose, to enquire. A new charter 
 was ordered, which the province now has, and is not 
 much more than the shadow of the old one. 
 
 [Herewith follow the Propositions set forth in 
 the "• Defence," and such charges as were brought 
 against the colonists : — J 
 
144 SPIRIT OF COLONIAL RIGHTS [Ch. XI 
 
 1st Prop. That the charter governments have a 
 good and undoubted right to their respective 
 charters. 
 
 2nd Prop. That these governments have by no 
 misbehaviour forfeited their charters. 
 
 The subjects abroad claim the privilege of Magna 
 Charta, which says that no man shall be fined above 
 the nature of his offence, and whatever his miscar- 
 riage be, a "salvo contenemento fuo" is to be 
 observed by the judge. If, therefore, they have 
 committed faults, let them be chastized, not de- 
 stroyed. Let not their corporations be dissolved for 
 any other cause than a failure of their allegiance. 
 
 Charge 1. That they have neglected the defence 
 of the inhabitants. 
 
 Charge 2. That they have exercised arbitrary 
 power. 
 
 Charge 3. That the Acts of Trade are dis- 
 regarded. 
 
 Charge 4. That they have made laws repugnant 
 to the laws of Great Britain. 
 
 Charge 5. That the charter colonies will grow 
 great and formidable. 
 
 3rd Prop. That it is not the interest of the 
 Crown to resume the charters, if forfeited. 
 
 4:th Prop. That it seems inconsistent with jus- 
 tice to disfranchize the charter colonies by an act 
 of Parliament. 
 
 CONTEMPORARY EXPOSITION 
 
 ANONYMOUS, "PLAIN STATE OF THE ARGUMENT" (1724) 
 
 ... It would be inconsistent to say that a King has any 
 power at all, but what is derived ultimately from the People 
 through the Parliament. 
 
 Whatever deeds the King executes as King: whatever 
 government he settles ; whatever charters he grants must, upon 
 this account, be subject to the inspection, the controul, the 
 
1724r-1775] CONTEMPORARY EXPOSITION 145 
 
 alteration which Parliament from time to time may think fit 
 to make. 
 
 The settling a colony, is effected by the King's granting a 
 charter to a number of people, to inhabit and cultivate a part 
 of some new acquired dominions, which hitherto has not had a 
 regular government from Great-Britain. But it would be 
 absurd to the highest degree to suppose a King to be able to 
 establish laws in a colony which a Parliament could not alter. 
 If he could, he might also make the same colony independent; 
 or, in other words, he might alienate, that is, dispose of a 
 part of the British Empire. Thus, if charters granted by the 
 King are not liable to the controul of a Parliament, a King of 
 Great-Britain might make himself absolute over all new-con- 
 quered, new-ceded, or new-discovered countries. He might fix 
 what terms he pleased, or put the charters into what hands, and 
 for as long a time as he thought best. It must then I think be 
 allowed as a certain position that whatever charters our colo- 
 nies had granted to them, they are necessaril}'^ subject to the 
 Jurisdiction of Parliament. This is equally true whether the 
 Jurisdiction of Parliament is expressed in the charter or not. 
 
 The King it is allowed has altered and withdrawn charters. 
 Of course, what the King by his delegated power can legally 
 do, the Parliament by their supreme jurisdiction may un- 
 doubtedly effect. 
 
 The King issues proclamations, and grants charters to all new 
 colonies. He determines the mode of government, causes 
 duties to be laid on wares, and taxes to be raised for the sup- 
 port of the government of each Province. But if Parliament 
 chooses to alter the modes both of taxation and government, I 
 cannot see the shadow of a reason against the legality of their 
 doing it. It may be at any distance of time, and as the state 
 of the provinces demands. In the first settling a colony, it is 
 sufficient that the King exerts his delegated power, and allows 
 the provinces to assess themselves in a particular manner. 
 But, when provinces grow large, populous and powerful, the 
 supreme jurisdiction of Parliament should always establish the 
 mode of government which is to be pursu.ed. 
 
 A Plain State of the Argument between Great Britain and her Colonies. 4-9. 
 
 10 
 
146 SPIRIT OF COLONIAL RIGHTS [Ch. XI 
 
 ANONYMOUS "PROPOSALS" (1757) 
 
 The first settlements of most of our Colonies in America were 
 made by private Adventurers ; many of the Colonies were after- 
 wards incorporated hy Charters or Privileges granted by the 
 Crown, with a Power to make Laws, and to establish Courts of 
 Justice, Forms of Judicature, and the Manner of Proceeding, 
 and in some Respects to establish their own Form of Govern- 
 ment, under this Limitation, that the Laws or Statutes passed 
 by them, should not be repugnant, but as near as possible 
 agreeable to the Laws of England. 
 
 And whereas in those remote Colonies situate near many 
 barbarous Nations, the Incursions of the Savages, as well as 
 other Enemies, Pirates, and Robbers, might probably annoy 
 them ; the said Corporations were authorized and impowered to 
 levy, muster, and train all Sorts of Men, of what Condition 
 soever, and to pursue their Enemies as well by Sea as by Land, 
 even without the Limits of their respective Provinces. 
 
 It is also proper to mention, that there are several other 
 Colonies that are more immediately dependant on the Crown, 
 both with Respect to their Laws and Constitutions ; yet it has 
 been the Pleasure of the Crown, to allow them a kind of legis- 
 lative Power, under particular Restraints and Limitations. 
 
 Now as all those Colonies may in some Particulars be con- 
 sidered, with respect to each other, as so many independant 
 States, yet they ought to be considered as one with respect to 
 their Mother Country ; and therefore a Union of the Colonies, 
 for their general Defence, so framed as to oblige them to act 
 jointly, and for the Good of the Whole, can only be made by 
 the Wisdom of our Legislature ; and without such an Union, it 
 is impossible to make tlie Colonies act with Force and Vigour, 
 or to oppose the united Force of the French, altho' much infe- 
 rior in Point of Number. 
 
 There is another Thing highly worthy of Attention, viz. that 
 tho' the Charter Governments are entitled to make Bye Laws 
 for the better ordering their own Domestic Affairs, yet they are 
 not entitled to make Laws which may have a general Effect, 
 either in obstructing the Trade of this Kingdom, or in laying 
 Restraints and Difficulties on the neighbouring Colonies : For 
 as their Power in a Legislative Capacity originally flows from 
 
1724-1775] CONTEMPORARY EXPOSITION 147 
 
 the Crown, under certain Limitations and Restrictions, particu- 
 larly that of not passing any Laws, but such as are consistent 
 with the Constitution and Laws of this Kingdom, the Intention 
 of the Crown must have been, that the Fitness and Expediency 
 of such Laws should be only cognizable and determinable by 
 the Crown, or by the Legislature in this Kingdom, as it is con- 
 ceived the Colonies cannot be proper Judges in their own Case : 
 Yet to such Excess have some of the Charter G-overnments pro- 
 ceeded, particularly Rhode Island and Connecticut, that they 
 have enacted Laws, that no Law shall take Effect in their 
 Colonies, unless it be first authenticated or enacted into a Law 
 by them ; and thus they have made themselves Judges of the 
 Fitness and Expediency of their own Laws, by not transmitting 
 them to the proper Boards at Home : Their Charters indeed are 
 injudiciously silent on this Head, yet the Thing is in itself not 
 only fit and reasonable, but absolutely necessary. 
 
 And therefore if the Affairs of the Colonies are taken into 
 Consideration in Parliament, it is humbly conceived, that it 
 would be highly fit and proper to regulate this Matter, in order 
 to prevent the many Incroachments, which several of the Colo- 
 nies have made with respect to Trade, and in the issuing of 
 Paper Bills of Currency, which hath often had a publick and a 
 general Effect, and greatly injured the Trade and Commerce of 
 this Kingdom ; and in Case of an Union amongst the Colonies 
 for their mutual Defence, it would make it impossible for them 
 to make good the Supplies necessary to support the Charge of 
 the Troops which may be sent from one Colony to the Support 
 of another, especially as their Bills of Currency differ greatly 
 in Value, and that they have no regular Course of Exchange 
 between one Province and another : besides, in new Countries 
 they cannot have those Resources which may be had in Coun- 
 tries w^here Trade and the Course of Exchanges are regularly 
 established. 
 
 Proposals for Uniting the English Colonies on the Continent of America. 
 14-17. 
 
 GOVERNOR POWNALL (1765) 
 
 Every subject, born within the realm, under the freedom of 
 the Government of Great Britain, or by adoption admitted to 
 
148 SPIRIT OF COLONIAL RIGHTS [Ch. XI 
 
 the same, has an essential, indefeasible right to be governed, 
 under such a mode of government as has the unrestrained exer- 
 cise of all those powers which form the freedom and rights of 
 the constitution; and therefore "the crown cannot establish 
 any colony upon, — or contract it within a uarrower scale than 
 the subject is entitled to, by the great charters of England." 
 The government of each colony must have the same powers, 
 and the same extent of powers, that the government of Great 
 Britain has, — and must have while it does not act contrary to 
 the laws of Great Britain, the same freedom and independence 
 of legislature, as the parliament of Great Britain has. This 
 right (they say) is founded not only in the general principles of 
 the rights of a British subject, but is actually declared, con- 
 firmed, or granted to them in the commissions and charters 
 which gave them the particular frame of their respective con- 
 stitutions. 
 
 Thomas PowiS'ALL, The Administration of the Colonies, pamphlet. 
 
 ANONYMOUS, "AMERICA'S APPEAL" (1775) 
 
 III. Lei US consider the Rights of the AMERICANS subse- 
 quent to their Charters and Colony Constitutions. 
 
 As there are certain rights of men, which are unalienable even 
 by themselves ; and others which they do not mean to alienate, 
 when they enter into civil society. And as power is naturally 
 restless, aspiring and insatiable ; it therefore becomes necessary 
 in all civil communities (either at their first formation or by 
 degrees) that certain great first principles be settled and 
 established, determining and bounding the power and preroga- 
 tive of the ruler, ascertaining and securing the rights and liber- 
 ties of the subjects, as the foundation stamina of the govern- 
 ment; which in all civil states is called the constitution, on the 
 certainty and permanency of w^hich, the rights of both the 
 ruler and the subjects depend ; nor may they be altered or 
 changed by ruler or people, but by the whole collective body, or 
 a major part at least, nor may they be touched by the legislator ; 
 for the moment that alters essentially the constitution, it annihi- 
 lates its own existence, its constitutional authority. Not only 
 so, but on supposition the legislator might alter it ; such a stretch 
 
1724-1775] CONTEMPORARY EXPOSITION 149 
 
 of power would be dangerous bej^ond conception ; for could the 
 British parliament alter the original principles of the constitu- 
 tion, the people might be deprived of their liberties and proper- 
 ties, and the parliament become absolute and perpetual ; and 
 for redress in such case, should it ever happen, they must 
 resort to their native rights, and be justified in making insurrec- 
 tion. For when the constitution is violated, they have no 
 other remedy; but for all other wrongs and abuses that may 
 possibly happen, the constitution remainiug inviolate, the 
 people have a remedy thereby. 
 
 ... If, therefore, they were to be considered as English 
 subjects, by the constitution of that kingdom, they had right 
 to enjoy all these privileges ; if not as English subjects, then 
 they were theirs without being beholden therefor. In either 
 view, therefore, they were entitled to have and enjoy all the 
 rights, liberties, and privileges, which, by their several consti- 
 tutions, were granted and confirmed to them, antecedent 
 thereto. And their constitutions are the original compacts, 
 containing the first great principles, or stamina of their govern- 
 ments ; combining the members, connecting and subordinating 
 them to the King as their supreme head and liege Lord ; also 
 prescribing the forms of their several governments, determin- 
 ing and bounding the power of the crown over them, within 
 proper limits, and ascertaining and securing their rights, juris- 
 dictions and liberties ; and are not to be compared to the 
 charters of corporations in England (although they are to be 
 deemed sacred) which are royal favours granted to particular 
 corporations, beyond what are enjoyed by the subjects in com- 
 mon ; if they should be forfeited and taken away the membe[r]s 
 will still retain the great essential rights of British subjects, 
 and these original compacts were made and entered into by the 
 King, not only for himself, but expressly for his heirs and suc- 
 cessors on the one part, and the colonies, their successors and 
 assigns on the other ; whereby the connection was formed, not 
 only between the parties then in being, but between the crown 
 and the colonies, through all successions of each ; and those 
 compacts are permanent and perpetual, as unalterable as 
 Magna Charta, or the primary principles of the English con- 
 stitution: nor can they be vacated or changed by the king, any 
 
150 SPIRIT OF COLONIAL RIGHTS [Ch. XI 
 
 more than by the colonies, nor be forfeited by one more than 
 the other ; for they are mutually obligatory on both, and are 
 the ligaments and bonds that connect the colonies with the 
 king of Great-Britain, and the king with them : cut, therefore, 
 and dissolve them, and the colonies will become immediately 
 disunited from the crown, and the crown from them. Should 
 the original parties to these constitutions awake in their tomb, 
 and come forth (on a controversy that would awake the dead, 
 could the dead be waked) and with united voice testify, that 
 this was their original, true intent and meaning, would it not 
 be awfully striking and convincing? But we have greater evi- 
 dence ; we have their original declaration, made in that day, 
 deliberately reduced to writing, and solemnly ratified and con- 
 firmed, which is as follows : " We do, for us, our heirs and suc- 
 cessors, grant to, &c. and their successors, by these presents, 
 that these our letters patent, shall be firm, good, and effectual 
 in the law, to all intents, constructions, and purposes whatever, 
 according to our true intent and meaning herein before de- 
 clared, as shall be construed, reputed, and adjudged most 
 favourable on the behalf, and for the best benefit and behoof 
 of the grantees, &c., notwithstanding any omissions therein, 
 or any statute, act, ordinance, provision, proclamation, or re- 
 striction heretofore made, had, enacted, ordained, or provided, 
 or any other matter, cause, or thing whatsoever, to the contrary 
 thereof, in any wise notwithstanding." 
 
 America's Appeal to the Impartial World. 22-23, 24-26. 
 
 CRITICAL COMMENT 
 
 WALSH (1819) 
 
 It is a remarkable trait in the history of the New England 
 settlers, that they did not seek, and appear to have been even 
 unwilling to receive assistance from the mother country. . . . 
 
 While the people of New England were providing for their 
 own safety, with consummate judgment, and performing prod- 
 igies of valour in innumerable rencounters with the enemy, they 
 had not even the consolation of escaping the reproach of pusil- 
 lanimity, from the mother country. The court of James II. 
 besides withholding assistance, on the pretext that it was not 
 
1819-1891] CRITICAL COMMENT 151 
 
 implored, taxed them with wanting hearts to make use of their 
 means of defence. A part of the nation concurred in this in- 
 justice ; which, even at this distance of time, causes the breast 
 to swell with indignation, when the bold expeditions of these 
 colonists, the prodigal effusion of their blood, and the hardships 
 of their warfare, are passed in review. This emotion is not 
 allayed, as we read, in descending through their history, that 
 on the occasion of the bill, introduced into the British Parlia- 
 ment, in 1715, for the destruction of all the charter govern- 
 ments, the first of the charges brought against them was, " the 
 having neglected the defence of the inhabitants ! " . . . 
 
 ... In fact, in the very height of the calamity — at the 
 moment when New England was putting forth all her strength 
 for the retention of the soil, — the merchants and manufacturers 
 of the mother country were clamorous, and the committee of 
 plantations tasked, for measures of rigour against her, on the 
 ground that her "inhabitants had encouraged foreigners to 
 traffic with them, and supplied the other plantations with those 
 foreign productions which ought only to have been sent to 
 England." . . . 
 
 ... At a very early period, the mother-country cast the 
 reproach which she has constantly repeated, against the colo- 
 nists, of provoking the Indian wars, and acquiring the dominion 
 of the Indian territory by fraud as well as force. Dummer's 
 Defence of the Charters, written at the commencement of the 
 last century, treats of this " unworthy aspersion," as the honest 
 author styles it, and as he proves it to be by unanswerable sug- 
 gestions. With respect to New England particularly, what be 
 asserts is susceptible of abundant evidence — that " she sought 
 to gain the natives by strict justice in her dealings with them, 
 as well as by all the endearments of kindness and humanity ; " 
 that " she did not commence hostilities, nor even take up arms 
 of defence, until she found by experience that no other means 
 would prevail " — and, " that nothing could oblige the Indians 
 to peace and friendship, after they conceived a jealousy of the 
 growing powers of the English." The congress of the New 
 England league was particularly authorized, to prescribe rules 
 for the conduct of the colonists towards the natives ; and its 
 legislation on this head, was tempered with as much for- 
 
152 SPIRIT OF COLONIAL RIGHTS [Ch. XI 
 
 bearance and mercy, as a due regard for self-preservation 
 would possibly admit. 
 
 Robert Walsh, An Appeal from the Judgments of Great Britain respecting 
 the United States of America. 80-85. 
 
 MARSHALL (182'1) 
 
 In Massachusetts, peace abroad was the signal for dissension 
 at home. Independent in her opinions and habits, she had 
 been accustomed to consider herself rather as a sister king- 
 dom, acknowledging one common sovereign with England, 
 than as a colony. The election of all the branches of the 
 legislature, a principle common to New England, contributed, 
 especially while the mother country was occupied with her 
 own internal divisions, to nourish these opinions and habits. 
 Although the new charter of Massachusetts modified the inde- 
 pendence of that colony, by vesting the appointment of the 
 governor in the crown, yet the course of thinking which had 
 prevailed from the settlement of the country, had gained too 
 much strength to be immediately changed ; and Massachusetts 
 sought, by private influence over her chief magistrate, to com- 
 pensate herself for the loss of his appointment. With this 
 view, it had become usual for the general court to testify its 
 satisfaction with his conduct by presents ; and this measure 
 was also adopted in other colonies. . . . 
 
 In the midst of these contests, governor Shute, who had 
 privately solicited and obtained leave to return to England, 
 suddenly embarked on board the Sea Horse man of war, leav- 
 ing the controversy concerning the extent of the executive 
 power, to devolve on the lieutenant governor. 
 
 The house of representatives persisted in asserting its con- 
 trol over objects which had been deemed within the province 
 of the executive ; but its resolutions were generally negatived 
 by the council. This produced some altercation between the 
 two branches of the legislature ; but they at length united in 
 the passage of a resolution desiring their agent in England to 
 take the best measures for protecting the interests of the colony, 
 which were believed to be in danger from the representations 
 of governor Shute. . . . 
 
1819-1891] CRITICAL COMMENT 153 
 
 Meanwhile the complaints of governor Shute against the 
 house of representatives were heard in England. Every ques- 
 tion was decided against the house. In most of them, the 
 existing charter was deemed sufficiently explicit ; but, on two 
 points, it was thought advisable to have explanatory articles. 
 These were, the right of the governor to negative the appoint- 
 ment of the speaker, and the right of the house on the subject 
 of adjournment. An explanatory charter therefore passed the 
 seals, affirming the power claimed by the governor to negative 
 a speaker, and denying to the house of representatives the 
 right of adjourning itself for a longer time than two days. 
 This charter was submitted to the general court, to be accepted 
 or refused ; but it was accompanied with the intimation that, 
 in the event of its being refused, the whole controversy be- 
 tween the governor and house of representatives would be laid 
 before Parliament. The conduct of the representatives had 
 been so generally condemned in England, as to excite fears 
 that an act to vacate the charter, would be the consequence of 
 a parliamentary inquiry. The temper of the house too had 
 undergone a change. The violence and irritation which marked 
 its proceedings in the contest with governor Shute had sub- 
 sided ; and a majority determined to accept the New charter. 
 
 John Marshall, A History of the Colonies Planted by the English on the 
 Continent of North America. 217-222. 
 
 THWAITES (1891) 
 
 For many years the New England charters were in imminent 
 danger of annulment, the purpose apparently being to place the 
 colonies under a vice-regal government. Those of Connecticut 
 and Rhode Island were the liberal documents granted to them 
 early in their career ; electing their own governors, they were 
 practically independent of the mother-country, and the general 
 movement against the charters had these two especially in view. 
 From 1701 to 1749, the charters were seriously menaced at 
 various times ; but on each occasion the astute diplomacy of 
 the colonial agents in England succeeded in warding off the 
 threatened attack. Worthy of especial mention in this con- 
 nection are Sir Henry Ashurst, the representative of Connecti- 
 cut, and Jeremiah Dummer, his successor. In 1715, at a time 
 
154 SPIRIT OF COLONIAL RIGHTS [Ch. XI 
 
 when it was proposed to annex Rhode Island and Connecticut 
 to the unchartered royal province of New Hampshire, Dummer 
 issued his now famous Defence of the American charters, in 
 which he forcibly argued, (1) That the colonies "have a 
 good and undoubted right to their respective charters," in as 
 much as they had been irrevocably granted by the sovereign 
 " as premiums for services to be performed.'' (2) That these 
 governments ' ' have by no misbehaviour forfeited their char- 
 ters," and were in no danger of becoming formidable to the 
 motherland. (3) That to repeal the charters would endanger 
 colonial prosperity, and " whatever injures the trade of the 
 plantations must in proportion affect G-reat Britain, the source 
 and centre of their commerce." (4) That the charters should 
 be proceeded against in lower courts of justice, not in par- 
 liament. Dummer's presentment of the case was regarded by 
 friends of the colonies as unanswerable, and was largely instru- 
 mental in causing an ultimate abandonment of the ministerial 
 attack on the New England charters. 
 
 E. G. Thwaites, The Colonies. 266-267. 
 
1765] THE STAMP ACT CONTROVERSY — TEXT 155 
 
 Chaptee XII 
 THE STAMP ACT CONTROVERSY 
 
 SUGGESTIONS 
 
 With the passage of the Stamp Act in March, 1765, the colonists 
 arose in open defiance against royal oppression. The Stamp Act 
 Congress was called togetlier in New York, and on October 7th, 1765, 
 the document known as the Declaration of Rights and Grievances 
 was drawn up and considered by the members. It sets forth the 
 grievances of the colonists, it petitions the king for redress, and 
 it finally asserts that " taxation cannot be constitutionally imposed 
 on them but by their respective legislatures." This Declaration is 
 important because it is the first utterance of the body of American 
 citizens as a whole. Heretofore no concerted action had taken place ; 
 the colonists were, for the first time, acting in a body. 
 
 In studying the period to which this document of the Stamp Act 
 Congress belongs, the British established qualities of character — love 
 of individual freedom and great loyalty to the King — stand out em- 
 phatically. Eleven years later, with the Declaration of Independence, 
 the loyalty to the Crown is set aside for the sake of independence of 
 action; in 1765, however, the American colonist was a brave British 
 subject rebelling against injustice, but striving to fulfil his ideal of 
 patriotism to country and fidelity to English law. 
 
 For Outlines and Material, see Appendix A. 
 
 DOCUMENT 
 
 Declaration of Rights and Grievances of the Colonists in America. 
 Oct. yth, 1765. 
 
 The members of this congress, sincerely devoted, Joum. First 
 with the warmest sentiments of affection and duty ^^^'o'^Tq' 
 to his majesty's person and government, inviolably gja,^p ^^^ 
 attached to the present happy establishment of the Congress as- 
 protestant succession, and with minds deeply im- sembled in 
 pressed by a sense of the present and impending a t f" 
 misfortunes of the British colonies on this conti- Settlement. 
 
156 
 
 THE STAMP ACT CONTROVERSY [Ch. XII 
 
 Magna 
 
 Charta, arts. 
 Ixi., Ixii. 
 
 See Confir- 
 matio Charta 
 rum. 
 
 Magna 
 Charta. 
 Habeas Cor- 
 pus Act. 
 
 nent ; having considered as maturely as time would 
 permit, the circumstances of said colonies, esteem 
 it our indispensable duty to make the following 
 declarations, of our humble opinions, respecting the 
 most essential rights and liberties of the colonists, 
 and of the grievances under which they labor, by 
 reason of several late acts of parliament. 
 
 1st. That his majesty's subjects in these colonies, 
 owe the same allegiance to the crown of Great 
 Britain, that is owing from his subjects born within 
 the realm, and all due subordination to that august 
 body, the parliament of Great Britain. 
 
 2d. That his majesty's liege subjects in these 
 colonies are entitled to all the inherent rights and 
 privileges of his natural born subjects within the 
 kingdom of Great Britain, 
 
 3d. That it is inseparably essential to the freedom 
 
 of a people, and the undoubted rights of Englishmen, 
 
 ■ that no taxes should be imposed on them, but with 
 
 their own consent, given personally, or by their 
 
 representatives. 
 
 4th. That the people of these colonies ai-e not, 
 and from their local circumstances, cannot be repre- 
 sented in the house of commons in Great Britain. 
 
 5th. That the only representatives of the people 
 of these colonies, are persons chosen therein, by 
 themselves ; and that no taxes ever have been, or 
 can be constitutionally imposed on them, but by 
 their respective legislatures. 
 
 6th. That all supplies to the crown, being free 
 gifts of the people, it is unreasonable and inconsist- 
 ent with the principles and spirit of the British 
 constitution, for the people of Great Britain to 
 grant to his majesty the property of the colonists. 
 
 7th. That trial by jury is the inherent and 
 invaluable right of every British subject in these 
 colonies. 
 
 8th. That the late act of parliament, entitled, an 
 act for granting and applying certain stamp duties, 
 
1765] TEXT 157 
 
 and other duties in the British colonies and planta- 
 tions in America, &c., by imposing taxes on the 
 inhabitants of these colonies, and the said act, afld 
 several other acts, by extending the jurisdiction 
 of the courts of admiralty beyond its ancient limits, See Declara- 
 
 have a manifest tendency to subvex't the rights and tion of Inde- 
 
 . -^ ° pendence. 
 
 liberties of the colonists. 
 
 9th. That the duties imposed by several late acts 
 of parliament, from the peculiar circumstances of 
 these colonies, will be extremely burthensome and 
 grievous, and from the scarcity of specie, the pay- 
 ment of them absolutely impracticable. 
 
 10th. That as the profits of the trade of these 
 colonies ultimately centre in Grreat Britain, to pay 
 for the manufactures which they are obliged to take 
 from thence, they eventually contribute very largely 
 to all supplies granted there to the crown. 
 
 11th. That the restrictions imposed by several Navigation 
 late acts of parliament, on the trade of these col- A-cts. 
 onies, will render them unable to purchase the 
 manufactures of Great Britain. 
 
 12th. That the increase, prosperity, and happi- 
 ness of these colonies, depend on the full and free 
 enjoyment of their rights and liberties, and an inter- 
 course, with Great Britain, mutually affectionate 
 and advantageous. 
 
 13th. That it is the right of the British subjects This had 
 in these colonies, to petition the king or either house continued to 
 of parliament. be a custom 
 
 Lastly, That it is the indispensable duty of these g^^^^ects^ 
 colonies to the best of sovereigns, to the mother until 1775. 
 country, and to themselves, to endeavor, by a loyal 
 
 and dutiful address to his majesty, and humble ^^J'® *^^® • 
 
 cliii6r6GC6 in 
 application to both houses of parliament, to procure spirit towards 
 the repeal of the act for granting and applying George III. in 
 certain stamp duties, of all clauses of any other y^>j'q 
 acts of parliament, whereby the jurisdiction of the 
 admiralty is extended as aforesaid, and of the 
 other late acts for the restriction of the American 
 commerce. 
 
158 THE STAMP ACT CONTROVERSY [Ch. XII 
 
 CONTEMPORARY EXPOSITION 
 
 FRANKLIN (1766) 
 
 Q. Do not you think the people of America would submit to 
 pay the stamp-duty if it was moderated ? 
 
 A. No, never, unless compelled by force of arms. 
 
 Q. "What was the temper of America towards G-reat Britain 
 before the year 1763? 
 
 A. The best in the world. They submitted willingly to the 
 government of the Crown, and paid, in all their courts, obedi- 
 ence to the Acts of parliament. Numerous as the people are 
 in the several old provinces, they cost you nothing in forts, 
 citadels, garrisons or armies, to keep them in subjection. They 
 were governed by this country at the expense only of a little 
 pen, ink and paper. They were led by a thread. They had 
 not only a respect, but an affection, for Great Britain, for its 
 laws, its customs, and manners, and even a fondness for its 
 fashions, that greatly increased the commerce. Natives of 
 Britain were always treated with particular regard ; to be an 
 Old England-man was, of itself, a character of some respect, 
 and gave a kind of rank among us. 
 
 Q. And what is their temper now? 
 
 A. O, very much altered ! 
 
 Q. Did you ever hear the authority of parliament to make 
 laws for America questioned till lately? 
 
 A. The authority of parliament was allowed to be valid in 
 all laws except such as should lay internal taxes. It was never 
 disputed iu laying duties to regulate commerce. 
 
 Q. In what light did the people of America use to consider 
 the parliament of Great Britain? 
 
 A. They considered the parliament as the great bulwark and 
 security of their liberties and privileges, and always spoke of it 
 with the utmost respect and veneration. 
 
 Arbitrary ministers, they thought, might possibly at times 
 attempt to oppress them ; but they relied on it, that parliament 
 on application, would always give redress. . . . 
 
1766-1775] CONTEMPORARY EXPOSITION 159 
 
 Q. And have they not still the same respect for parliament? 
 
 A. No, it is greatly lessened. 
 
 Q. To what causes is that owing? 
 
 A. To a concurrence of causes : the restraints lately laid on 
 their trade, by which the bringing of foreign gold and silver 
 into the colonies was prevented ; the prohibition of making 
 paper money among themselves ; and then demanding a new 
 and heav}^ tax by stamps ; taking away, at the same time, 
 trials by juries, and refusing to receive and hear their humble 
 petitions. 
 
 Q. What is 3'^our opinion of a future tax imposed on the same 
 principle with that of the stamp-act ; how would the Americans 
 receive it? 
 
 A. Just as they do this. They would not pay it. 
 
 Q. Have not you heard of the resolution of this House, and 
 of the House of Lords, asserting the right of parliament relat- 
 ing to America, including a power to tax the people there ? 
 
 A. Yes, I have heard of such resolutions. 
 
 Q. What will be the opinion of the Americans on those 
 resolutions ? 
 
 A. They will think them unconstitutional and unjust. 
 
 Their opinion is, that when aids to the Crown are wanted, 
 they are to be asked of the several assemblies according to the 
 old established usage, who will, as they always have done, 
 grant them freely. . . . The granting aids to the Crown is the 
 only means they have of recommending themselves to their 
 Sovereign, and they think it extremely hard and unjust, that a 
 body of men, in which they have no representatives should 
 make a merit to itself of giving and granting what is not its 
 own, but theirs, and deprive them of a right they esteem of the 
 utmost value and importance, as it is the security of all their 
 other rights. 
 
 Pamphlet: Political^ Miscellaneous, and Philosophical Pieces. 1766. 
 
 JAMES OTIS (1766) 
 
 If it was thought hard that charter privileges should be taken 
 away by act of Parliament, is it not much harder to be in part, 
 or in whole disfranchised of rights, that have been always 
 
160 THE STAMP ACT CONTROVERSY [Ch. XII 
 
 thought inherent to a British subject, mainly, to be free from 
 all taxes, but what he consents to in person, or by his repre- 
 sentative? This right, if it could be traced no higher than 
 Magna Charta, is part of the common law, part of a British 
 subject's birthright, and as inherent and perpetual as the duty 
 of allegiance ; both which have been brought to these colonies, 
 and have been hitherto held sacred and inviolable, and I hope 
 and trust ever will. It is humbly conceived that the British 
 colonists (except only the (jonquered, if any) are, by Magna 
 Charta, as well entitled to have a voice in their taxes as the 
 snbjects within the realm. . . . The sum of my argument is, 
 that civil government is of God, that the administrators of it 
 were originally the whole people : . . . that this constitution is 
 the most free one, and by far the best, now existing on earth ; 
 that by this constitution, every man in the dominion is a free 
 man ; that no parts of his Majesty's dominions can be taxed 
 without his consent ; that every part has a right to be repre- 
 sented in the supreme or some subordinate legislature : that a 
 refusal of this would seem to be a contradiction in practice 
 to the theory of the constitution: that the colonies are sub- 
 ordinate dominions, and are now in such a state, as to make 
 it best for the good of the whole, that they should not only 
 be continued in the enjoyment of subordinate legislation, but 
 be also represented in some proportion to their numbers and 
 estates in the grand legislation of the nation ; that this would 
 firmly unite all parts of the British empire in the greatest peace 
 and prosperity, and render it invulnerable and perpetual. 
 
 James Otis, The Rights of the British Colonies. 65-67. 
 SIR WILLIAM KEITH (1767) 
 
 Reasons, humbly offered in Support of the above Proposal to 
 extend the Duties on Stampt Paper and Parchment all over the 
 British Plantations. The author of the above proposal disclaims 
 all views of depriving the British subjects in the plantations of 
 any of those rights and privileges which are derived to them as 
 natural-born subjects of Great Britain ; but on the other hand, 
 he cannot consider that part of his Majesty's subjects abroad 
 to be invested with any sort of rights or privileges, that are of 
 
1766-1775] CONTEMPORARY EXPOSITION 161 
 
 a higher and more independent Nature than what their breth- 
 eren of Great-Britain can claim at home. . . . He conceives 
 that the subjects there are under no other Supreme Legislature 
 but that of Great Britain ; in so much that every subject in 
 America as often as his occasions require, has an indubitable 
 right to make his humble application to a British Parliament 
 where he virtually conceives himself to be truly represented ; 
 because the common interest of the British State of Common- 
 wealth most certainly includes the subjects of America, equally 
 with those of every other part of the Dominion, and so we find 
 it to be understood by the Tenor of the famous Act of Naviga- 
 tion, as well as other restrictive acts relating to commerce and 
 the public revenue. 
 
 Sib William Keith, Subject of Taxing the British Colonists in America, 
 pamphlet. 
 
 DOCTOR TUCKER'S " LETTER " (1774) 
 
 Indeed it has been my constant remark, that when men were 
 at a loss for solid arguments and matters of fact, in their politi- 
 cal disputes, they then had recourse to the spirit of the consti- 
 tution as to their last shift, and the only thing to say. An 
 American, for example, now insists, that according to the spirit 
 of the English Constitutions, he ought not to be taxed without 
 his own consent, given either by himself or by a representative 
 in Parliament chosen by himself. Why ought he not? The 
 constitution says no such thing. But the spirit of it doth; and 
 that is as good, perhaps better. Very well ; see then how the 
 same spirit will presently wheel about and assert a doctrine 
 quite repugnant to the claims and positions of you Americans. 
 Magna Charta, for example, is the great foundation of Eng- 
 lish liberties, and the basis of the English Constitution. But 
 by the spirit of Magna Charta, all taxes laid on by Parliament 
 are constitutional, legal taxes. 
 
 Now remember . , . that the late Tax of Duties upon stamps 
 was laid on by Parliament and therefore according to your 
 own way of reasoning must have been a regular constitutional 
 tax. ... So that if you will now plead the spirit of Magna 
 Charta against the jurisdiction of Pai'liaraent you will plead 
 Magna Charta against itself. 
 
 Dr. Josiah Tuckee, Letter from a Merchant in London to his Nephew in 
 America. W 
 
162 THE STAMP ACT CONTROVERSY [Ch. XII 
 
 EDMUND BURKE (1774) 
 
 I propose, by removing the ground of the difference and 
 by restoring the former uns^ispectincj confidence of the colonies in 
 the mother country^ to give permanent satisfaction to your people, 
 and (far fi-om a scheme of ruling by discord) to reconcile them to 
 each other in the same act, and by the bond of the very same 
 Interest which reconciles them to British Government. . . . 
 
 If we adopt this mode ; if we mean to conciliate and concede ; 
 let us see of what nature the concession ought to be : to ascer- 
 tain the nature of our concession we must look at their com- 
 plaint. The colonies complain that they have not the charac- 
 teristic mark and seal of British freedom. They complain, that 
 they are taxed in a parliament in which they are not repre- 
 sented. If you mean to satisfy them at all, you must satisfy 
 them with regard to this complaint. If you mean to please 
 any people, you must give them the boon which they ask ; not 
 what you may think better for them, but of a kind totally 
 different. Such an act may be a wise regulation, but it is no 
 concession. . . . 
 
 My idea, therefoi'e, without considering whether we yield as 
 matter of right, or grant as matter of favour, is, to admit the 
 people of our colonies into an interest in the constitution ; and, by 
 recording that admission in the journals of parliament, to give 
 them as strong an assurance as the nature of the thing will 
 admit, that we mean forever to adhere to that solemn declara- 
 tion of systematic indulgence. . . . 
 
 I . . . wish you to recognize, for the theor}'^, the ancient 
 constitutional policy of this kingdom with regard to representa- 
 tion, as that policy has been declared in Acts of Parliament ; 
 and, as to practice, to return to that mode which a uniform expe- 
 rience has marked out to you as best ; and in which you walked 
 with security, advantage, and honour until the year 1763. 
 
 My resolutions therefore mean to establish the equity and 
 justice of a taxation of America, by grant, and not by imposi- 
 tion; . . . and to acknowledge that experience has shown the 
 benefits of their grants, and the ftitility of parliamentary taxa- 
 tion as a method of supply. 
 
 Edmund Burke, Speech on Conciliation with the Colonies. Burke's Works, 
 II. 21-60. 
 
1766-1775] CONTEMPORARY EXPOSITION 163 
 
 WILLIAM PITT (1774) 
 
 This, my Lords, though uo new doctriue, has always been my 
 received and unalterable opinion, and I will carry it to my grave, 
 that this country had no right under heaven to tax America. 
 It is contrary to all the principles of Justice and civil polity, 
 which neither the exigencies of the State, nor even an acqui- 
 escence in the taxes, could justify upon any occasion whatever. 
 Such proceedings will never meet their wished-for success; 
 and instead of adding to their miseries, as the bill now before 
 you most undoubtedly does, adopt some lenient measures 
 which may lure them to their duty ; proceed like a kind and 
 affectionate parent over a child whom he tenderly loves, and 
 instead of those harsh and severe proceedings, pass an amnesty 
 on all their youthful errors, clasp them once more in your fond 
 and affectionate arms ; and I will venture to affirm you will find 
 these children worthy of their sire. But should their turbu- 
 lence exist after 370ur professed terms of forgiveness, which I 
 hope and expect this house will immediately adopt, I will be 
 among the foremost of your Lordships to move for such 
 measures as will effectually prevent a future relapse, and 
 make them feel what it is to provoke a fond and forgiving 
 parent! a parent, my Lords, whose welfare has been my 
 greatest and most pleasing consolation. This declaration may 
 seem unnecessary ; but I will venture to declare, the period is 
 not far distant, when she will want the assistance of her most 
 distant friends ; but should the all-disposing hand of Provi- 
 dence prevent me from affording her my poor assistance, my 
 prayers shall be ever for her welfare. — Length of days be 
 in her right hand, and in her left riches and honour: 
 may her ivays be the ways of pleasantness, and all her paths 
 be peace ! t 
 
 William Pitt, Eael of Chatham's Speech in the House of Lords, 27th 
 day of Ma}^, 1774. Chatham's Works, XLI. 292. 
 
 t The bill for " Quartering Soldiers " was passed, notwithstanding the 
 eloquence of Pitt. 
 
164 THE STAMP ACT CONTROVERSY [Ch. XII 
 
 JOURNALS OF CONGRESS 1X115) 
 
 Bfenjamin Franklin, Arthur Lee, agents, 
 dated, London, February 5th, 1775. 
 We think it proper to inform you, that your cause was well 
 defended by a considerable number of good and wise men in 
 both houses of parliament, though far from being a majority : 
 and that many of the commercial and manufacturing parts of 
 the nation, concerned in the American trade, have presented, 
 or, as we understand, are preparing to present, petitions to 
 parliament, declaring their great concern, for the present 
 unhappy controversies with America, and praying expressly, or 
 in effect, for healing measures, as the proper means of preserv- 
 ing their commerce, now greatly suffering or endangered. 
 
 William Bollen, Journals of Congress (May, 1775). I. 75, 76. 
 
 CRITICAL COMMENT 
 
 MACAULAY (1844) 
 
 Grrenville proposed a measure destined to produce a great 
 revolution, the effects of which will long be felt by the whole 
 human race. 
 
 We speak of the act for imposing stamp duties on the North 
 American colonies. . . . The Stamp Act will be remembered as 
 long as the globe lasts. , . . 
 
 In the meantime, every mail from America brought alarming 
 tidings. The crop which Grenville had sown, his successors 
 had now to reap. The colonies were in a state bordering on re- 
 bellion. The stamps were burned. The revenue officers were 
 tarred and feathered. All trafHc between the discontented 
 provinces and the mother country was interrupted. . . . The 
 Stamp was indefensible, not because it was beyond constitu- 
 tional competence of Parliament, but because it was unjust and 
 impolitic, sterile of revenue, and fertile of discontents. 
 
 T. B. Macaulat, The Earl of Chatham (Ed. Rev., Oct. 1844). 
 CHAMBERLAIN (1887) 
 
 When the Stamp Act Congress met in New York, October 
 7th, 1765, that city was the headquarters of the British forces 
 
1844-1887] CRITICAL COMMENT 165 
 
 in America, under the command of General Gage. Lieutenant- 
 Governor Golden, then filling the executive chair, was in favour 
 of the act, and resolved to execute it ; but the Sons of Liberty 
 expressed different sentiments. The Congress contained men 
 some of whom became celebrated. Timothy Ruggles was 
 chosen speaker, but Otis was the leading spirit. In full accord 
 with him were the Livingstons of New York, Dickinson of 
 Pennsylvania, McKean and Rodney of Delaware, Tilghman of 
 Maryland, and Rutland and the elder Lynch of South Carolina. 
 New Hampshire, Virginia, North Carolina and Georgia failed 
 to send delegates, but not for lack of interest in the cause. 
 The Congress prepared a Declaration of Rights and Grievances, 
 an address to the King, a memorial to the House of Lords, and 
 a petition to the House of Commons, and adjourned on Octo- 
 ber 25th. For a clear, accurate, and calm statement of the 
 position of the colonies these papers were never surpassed ; nor, 
 until the appearance of the Declaration of Independence, was 
 any advance made from the ground taken in them. 
 
 Mellen Chamberlain, The Revolution Impending, in Justin Winsoe, 
 Narrative and Critical History of America. VI. 30-31. 
 
166 VIRGINIA BILL OF RIGHTS [Ch. Xni 
 
 Chapter XIII 
 VIRGINIA BILL OF RIGHTS 
 
 SUGGESTIONS 
 
 This declaration of rights was adopted by a convention that met in 
 Williamsburg, May 6, 1776, and was inserted unchanged in the Vir- 
 ginia State Constitutions of 1830, 1850-51, 1864, and with some modi- 
 fications in that of 1870. The Bill was drafted by George Mason 
 and was slightly changed in one clause at the instance of James 
 Madison. 
 
 This document is chosen as typical of the spirit of defiance shown 
 in the Revolutionary era, and because it stands as an example of State 
 legislation. Every colony became a state by a similar process of 
 alteration in its colonial government. The student of history should 
 comprehend clearly the theory of constitutional state government, 
 which was the child of English common law or citizenship. 
 
 In using this work at this point it would be well for the State Con- 
 stitution of the Commonwealth nearest in interest to the school to be 
 studied. 
 
 For Outlines and Material, see Appendix A. 
 
 DOCUMENT 
 
 A Declaration of Rights (June lath, 1776) 
 
 Preston's Made by the Representatives of the good People 
 
 207^-20^'^*' ^^ Virginia, assembled in full and free Convention, 
 
 which rights to pertain to them and their posterity 
 
 as the basis and foundation of government. 
 
 I. That all men are by nature equally free and 
 
 independent, and have certain inherent rights, of 
 Compare which, when they enter into a state of society, they 
 with Declara- cannot by any compact, deprive or divest their 
 pendence. posterity ; namel}^, the enjoyment of life and liberty 
 
 with the means of acquiring and possessing prop- 
 
1776] TEXT 167 
 
 erty, and pursuing and obtaining happiness and 
 safety. 
 
 II. That all power is vested in, and consequently Oath of Office- 
 derived from, the people ; that magistrates are Const. Art. ii. 
 their trustees and servants, and at all times amen- ' 
 
 able to them. 
 
 III. That government is, or ought to be, insti- g^^ gjj^ ^j 
 
 tuted for the common benefit, protection and se- Rights; Act 
 
 curity of the people, nation, or community ; of all '^^ Settle- 
 ,. ^^', „ "^ ment; also, 
 
 the various modes and torms of government, that Declaration 
 
 is best which is capable of producing the greatest of Indepea- 
 
 dence 
 degree of happmess and safety, and is most effect- 
 ually secured against the danger of maladminis- 
 tration ; and that, when a government shall be 
 found inadequate or contrary to these purposes, a 
 majority of the community hath an indubitable, 
 unalienable and indefeasible right to reform, alter 
 or abolish it, in such manner as shall be judged 
 most conducive to the public weal. 
 
 IV. That no man, or set of men, are entitled to 
 exclusive or separate emoluments or privileges from 
 the community but in consideration of public ser- 
 vices, which not being descendible, neither ought 
 the offices of magistrate, legislator, or judge to be 
 hereditary. 
 
 V. That the legislative, executive and judicial 
 powers should be separate and distinct ; and that 
 
 the members thereof may be restrained from op- ^j^^ of^hT' 
 
 pi'ession, by feeling and participating the burthens three de- 
 
 of the people, they should, at fixed periods, be pa^rt^.^iits ^ 
 
 •^ ^ -^ ' ^ ' conceived m 
 
 reduced to a private station, return into that body 1776; Const. 
 
 from which they were originally taken, and the -^F^^- '^•■> "•> 
 vacancies be supplied by frequent, certain and reg- 
 ular elections, in which all, or any part of the 
 former members to be again eligible or ineligible, 
 as the laws shall dh-ect. 
 
 VI. That all elections ought to be free, and that 
 all men having sufficient evidence of permanent 
 common interest with, and attachment to the com- 
 
168 
 
 VIRGINIA BILL OF RIGHTS 
 
 [Ch. xin 
 
 Confirmatio 
 Chartarum. 
 VI. 
 
 Magna 
 Charta, 39- 
 40. 
 
 Habeas Cor- 
 pus Act. 
 Trial by 
 Jury. 
 
 Writs of As- 
 sistance un- 
 warranted. 
 
 See Chapter 
 V. 
 
 Const. Art. i., 
 Sect. 8 (16). 
 
 muuity have the right of suffrage, and cannot be 
 taxed, or deprived of their property for public uses, 
 without their own consent, or that of their repre- 
 sentatives so elected, nor bound by any law to 
 which they have not in like manner assented, for 
 the public good. 
 
 VII. That all power of suspending laws, or the 
 execution of laws, by any authority, without con- 
 sent of the representatives of the people, is injuri- 
 ous to their rights, and ought not to be exercised. 
 
 VIII. That in all capital or criminal prosecutions, 
 a man hath a right to demand the cause and nature 
 of his accusation, to be confronted with the ac- 
 cusers and witnesses, to call for evidence in his 
 favour, and to a speedy trial by an impartial jury 
 of twelve men of his vicinage, without whose unan- 
 imous consent he cannot be found guilty ; nor can 
 he be compelled to give evidence against himself; 
 that no man be deprived of his liberty, except by 
 the law of the land or the judgment of his peers. 
 
 IX. That excessive bail ought not to be required, 
 nor excessive fines imposed, nor cruel and unusual 
 punishments inflicted. 
 
 X. That general warrants, whereby an officer or 
 messenger may be commanded to search suspected 
 places without evidence of a fact committed, or to 
 seize any person or persons not named, or whose 
 offence is not particularly desci'ibed and supported 
 by evidence, are grievous and oppressive, and ought 
 not to be granted. 
 
 XI. That in controversies respecting property, 
 and in suits between man and man, the ancient 
 trial by jury of twelve men is preferable to any 
 other, and ought to be held sacred. 
 
 XII. That the freedom of the press is one of 
 the great bulwarks of liberty, and can never be 
 restrained but by despotic governments. 
 
 XIII. That a well regulated militia, composed 
 of the body of the people, trained to arms, is the 
 
177f)] CONTEMPORARY EXPOSITION 169 
 
 proper, natural, and safe defence of a free State ; 
 that standing armies in time of peace should be 
 avoided as dangerous to liberty; and that in all 
 cases the military should be under strict subordi- 
 nation to, and governed b}', the civil power. 
 
 XIV. That the people have a right to uniform 
 government; and therefore, that no government 
 separate from or independent of the government 
 of Virginia, ought to be erected or established 
 within the limits thereof. 
 
 XV. That no free government, or the blessing 
 of liberty, can be preserved to any people, but by 
 a firm adherence to justice, moderation, temper- 
 ance, frugality and virtue, and by a frequent re- 
 currence to fundamental principles. 
 
 XVI. That religion, or the duty which we owe 
 to our Creator, and the manner of discharging it, 
 can be directed only by reason and conviction, not 
 by force or violence ; and therefore all men are 
 
 equally entitled to the free exercise of religion, Freedom of 
 according to the dictates of conscience ; and that religious 
 it is the duty of all to practise Christian forbear- 
 ance, love and charity towards each other. 
 
 CONTEMPORARY EXPOSITION 
 
 WASHINGTON (1776) 
 
 To John Augustine Washington, 
 
 Philadelphia, 31 May, 1776. 
 Deae Beother, ... I am very glad to find that the Virginia 
 Convention have passed so noble a vote, and w4th so much 
 unanimity. Things have come to that pass now, as to convince 
 us, that we have nothing more to expect from the justice of Great 
 Britain. . . . To form a new government requires infinite care 
 and unbounded attention : for if the foundation is badly laid, 
 the superstructure must be bad. Every man should consider, 
 that he is lending his aid to frame a constitution which is to 
 render millions happy or miserable, and that a matter of such 
 moment cannot be the work of a day. 
 
 Geokge Washington, Works. IV. 105-107. 
 
170 VIRGINIA BILL OF RIGHTS [Ch. XIII 
 
 JOHN ADAMS (1776) 
 
 As I supposed no mau would think of consolidating this vast 
 continent under one national government, we should probably, 
 after the example of the Greeks, the Dutch, and the Swiss, 
 form a confederacy of States, each of which must have a sep- 
 arate government. Tliat the case of Massachusetts was the 
 most urgent, but that it could not be long before every other 
 Colony must follow her example. That with a view to this 
 subject, I had looked into the ancient and modern confederacies 
 for examples, but they all appeared to me to have been huddled 
 up in a hurry, by a few chiefs. But we had a people of more 
 intelligence, curiosity, and enterprise, who must be all con- 
 sulted, and we must realize the theories of the wisest writers, 
 and invite the people to erect the whole building with their own 
 hands, upon the broadest foundation. That this could be done 
 only by conventious of representatives chosen by the people in 
 the several colonies, in the most exact proportions. That it 
 was my opinion that Congress ought now to recommend to the 
 people of every Colony to call such conventions immediately, 
 and set up governments of their own, under their own author- 
 ity ; for the people were the source of all authority and original 
 of all power. These were new, strange, and tei-rible doctrines 
 to the greatest part of the members, but not a very small num- 
 ber heard them with apparent pleasure, and none more than 
 Mr. John Rutledge, of South Carolina, and Mr. John Sullivan, 
 of New Hampshire. 
 
 Congress, however, ordered the letter to lie on the table for 
 further consideration. 
 
 On Saturday, June 3d, the letter from the convention of the 
 Massachusetts Bay, dated the 16th of May, being again read, 
 the subject was again discussed, and then, 
 
 '•'■Resolved, That a committee of five persons be chosen, to 
 consider the same, and report what in their opinion is the 
 proper advice to be given to that Convention." 
 
 The following persons were chosen by ballot, to compose 
 that committee, namely, Mr. J. Rutledge, Mr. Johnson, Mr. 
 Jay, Mr. Wilson, and Mr. Lee. These gentlemen had several 
 conferences with the delegates from our State, in the course of 
 
1776] CONTEMPORARY EXPOSITION 171 
 
 which, I suppose, the hint was suggested, that they adopted in 
 their report. 
 
 Mr. Rutledge asked me my opinion of a proper form of gov- 
 ernment for a State. I answered him that any form that our 
 people would consent to institute, would be better than none, 
 even if they placed all power in a house of representatives, and 
 they should appoint governors and judges ; but I hoped they 
 would be wiser, and preserve the English Constitution in its 
 spirit and substance, as far as the circumstances of this country 
 required or would admit. That no hereditai-y powers ever had 
 existed in America, nor would they, or ought they to be intro- 
 duced or proposed ; but that I hoped the three branches of a 
 legislature would be preserved, an executive, independent of 
 the senate or council, and the house, and above all things, the 
 independence of the judges. . . . 
 
 On Wednesday, October 18th, the delegates from New 
 Hampshire laid before the Congress a part of the instructions 
 delivered to them by their Colony, in these words : — 
 
 " We would have you immediately use your utmost endeavours 
 to obtain the advice and direction of the Congress, with respect 
 to a method for our administering justice, and regulating our 
 civil police. We press you not to delay this matter, as its 
 being done speedily will probably prevent the greatest con- 
 fusion among us." . . . 
 
 Although the opposition was still inveterate, many members 
 of Congress began to hear me with more patience, and some 
 began to ask me civil questions. ' ' How can the people insti- 
 tute governments?" My answer was, "By conventions of 
 representatives, freely, fairly, and proportionably chosen." 
 "When the convention has fabricated a government, or a con- 
 stitution rather, how do we know the people will submit to it ? " 
 "If there is any doubt of that, the convention may send out 
 their project of a constitution, to the people in their several 
 towns, counties, or districts, and the people may make the 
 acceptance of it their own act." "But the people know noth- 
 ing about constitutions." "I believe you are much mistaken 
 in that supposition ; if you are not, they will not oppose a plan 
 prepared by their own chosen friends ; but I believe that in 
 every considerable portion of the people, there will be found 
 
172 VIRGINIA BILL OF RIGHTS [Ch. XIII 
 
 some men, who will understand the subject as well as their 
 representatives, and these will assist in enlightening the rest." 
 "But what plan of a government would you advise?" "A 
 plan as nearly resembling the government under which we were 
 born, and have lived, as the circumstances of the country will 
 admit. Kings we never had among us. Nobles we never had. 
 Nothing hereditary ever existed in the country ; nor will the 
 country require or admit of any such thing. But governors 
 and councils we have always had, as well as representatives. 
 A legislature in three branches ought to be preserved, and 
 independent judges." "Where and how will you get your 
 governors and councils?" "By elections." "How, — who 
 shall elect?" " The representatives of the people in a conven- 
 tion will be the best qualified to contrive a mode." 
 
 After all these discussions and interrogatories. Congress was 
 not prepared nor disposed to do anything as yet. They must 
 consider farther. 
 
 ' ' Resolved, That the consideration of this matter be referred 
 to Monday next." 
 
 Monday arrived, and Tuesday and Wednesday passed over, 
 and Congress not yet willing to do anything. 
 
 . . . Yet they could not be brought to agree upon a report and 
 to bring it forward in Congress, till Friday, November 3rd, when 
 Congress, taking into consideration the report of the committee 
 on the New Hampshire instructions, after another long delibe- 
 ration and debate, — 
 
 " Resolved, That it be recommended to the Provincial Con- 
 vention of New Hampshire, to call a full and free representa- 
 tion of the people, and that the representatives, if they think 
 it necessary, establish such a form of government, as in their 
 judgment will best produce the happiness of the people, and 
 most effectually secure peace and good order in the Province, 
 during the continuance of the present dispute between Great 
 Britain and the Colonies." 
 
 By this time I mortally hated the words, " Provinces," " Col- 
 onies," and " Mother Country," and strove to get them out of 
 the report. The last was indeed left out, but the other two 
 were retained even by this committee, who were all as high 
 
1887-1898] CRITICAL COMMENT 173 
 
 Americans as any in the house, unless Mr. Gadsden should be 
 excepted. Nevertheless, I thought this resolution a triumph, 
 and a most important point gained. 
 
 Mr. John Rutledge was now completely with us in our desire 
 of revolutionizing all the governments, and he brought forward 
 immediately some representations from his own State, when 
 
 " Congress, then taking into consideration the State of South 
 Carolina, and sundry papers relative thereto being read and 
 considered, 
 
 ' ' Resolved, That a committee of five be appointed to take the 
 same into consideration, and report what in their opinion is 
 necessary to be done. The members chosen, Mr. Harrison, 
 Mr. Bullock, Mr. Hooper, Mr. Chase, and Mr. S. Adams." 
 
 On November 4th, 
 
 "The committee appointed to take into consideration the 
 State of South Carolina, brought in their report, which being 
 read," a number of resolutions passed, the last of which will be 
 found in page 235 of the Journals, at the bottom. 
 
 " jResoZyed, That if the Convention of South Carolina shall 
 find it necessary to establish a form of government in that 
 Colony, it be recommended to that Convention to call a full 
 and free representation of the people, and that the said repre- 
 sentatives, if they think it necessary, shall establish such a 
 form of government as in their judgment will produce the hap- 
 piness of the people, and most eifectually secure peace and 
 good order in the Colony, during the continuance of the present 
 dispute between Great Britain and the Colonies. 
 
 John Adams, Works. III. 17-22. 
 
 CRITICAL COMMENT 
 
 HITCHCOCK (1887) 
 
 But these constitutional enactments are also social and politi- 
 cal phenomena. "VVe may study them in order to learn, not 
 only what they prescribe, but, so to speak, what they reveal. 
 As such phenomena they have, — not only for the student of 
 historical jurisprudence but for every thoughtful man, con- 
 cerned for the future of his country, — a significance quite 
 distinct from that which they have either for the officer who 
 
174 VIRGINIA BILL OF RIGHTS [Ch. XIII 
 
 must execute, or for the citizen who must obey them. , . . They 
 signify and express, not the '■'■ civium ardor prava jubentium" 
 but the conclusions of a free people as to what changes in 
 their oi^ganic law will best promote the common welfare. 
 
 Henky Hitchcock, Americati State Constitutions. 8, 9. 
 
 J. A. JAMESON (1887) 
 
 The mode adopted by Virginia was similar to that followed 
 in those colonies (N. H. and S. C). The Provincial Convention 
 elected in April, 1776, to continue in office one year, met at 
 Williamsburg on the 6th of May thereafter, and on the 29th of 
 June following framed and established the first constitution of 
 Virginia. This Convention was elected as a revolutionary 
 assembly, to carry on, as Mr. Jefferson expresses it, " the ordi- 
 nary business of the government," in default of the House of 
 Burgesses, and to " call forth the powers of the State for the 
 maintenance of the opposition to Great Britain." It was not 
 pretended, if tlie same authority is to be credited, that, in 
 assuming to frame a constitution, the Convention had any 
 warrant or authority whatever, except such as enured to it by 
 virtue of its revolutionary character. In so doing, then, it is 
 regarded, not as a constitutional, but as a Revolutionary Con- 
 vention. It was not empowered to discharge the special and 
 high function of enacting a fundamental code, by any law or 
 by the express desire of the people, but acted on its own 
 authority : and it did not deign to take upon its work the sense 
 of the people whom it pretended to represent. 
 
 John A. Jameson, Treatise on Constitutional Conventions. 125, 126. 
 
 GEO. T. CURTIS (1889) 
 
 It is a singular circumstance that, while the Revolutionary 
 government was left to conduct the great affairs of the con- 
 tinent through the mere instrumentality of a congress of dele- 
 gates, and was thus failing for the want of departments and 
 powers, the states were engaged in applying those great prin- 
 ciples in the organization and construction of popular govern- 
 ments, under which they may be formed with rapidity and 
 ease, and which are capable of the most varied adaptation to the 
 circumstances and wants of a free people. 
 
1887-1898] CRITICAL COMMENT 175 
 
 . . . Fortunately, as we have seen, the previous constitutions 
 of all the colonies had accustomed the people, to a great ex- 
 tent, to the business of government ; and when the recommen- 
 dation of the Continental Congress to the several colonies to 
 adopt such governments as would best conduce to their happi- 
 ness and safety was made immediately after the first effusion 
 of blood, it was addressed to civil societies, in which the 
 people had, in different modes, been long accustomed to wit- 
 ness and to exercise the functions of legislation, and in all of 
 which there were established forms of law, of judicature, and 
 of executive power. 
 
 The new political situation in which they now found them- 
 selves required, in many of the colonies, but little departure 
 from these ancient institutions. The chief innovation necessary 
 was to bring into practical working the authority of the people 
 in place of that of the crown of England, as the source of all 
 political power. The changes requisite to effect this were of 
 course to be made at once ; the materials for these changes 
 existed everywhere, in the representative institutions which 
 had long been a part of the system of every colony since the 
 first settlement of the country. . . . The foundations . . . for 
 popular governments existed in all the colonies, and furnished 
 the means for substituting the new source of political power, 
 the will of the people, in the place of that of an external 
 sovereign. 
 
 But there were other materials, also, for the formation of 
 regular and balanced governments, with nearer approaches to 
 perfection and with far greater completeness than a mere 
 democracy can afford to any people, however familiar they may 
 be with the exercise and the practice of government. The 
 people of these colonies had been so trained as to be able to 
 apply those principles in the construction and operation of 
 government which enable it to work freely, successfully, and 
 wisely, while resting on a popular basis. They were able to 
 see that the whole of what is meant and understood by govern- 
 ment is comprehended in the existence and due operation of 
 legislative, executive, and judicial powers. They had lived 
 under political arrangements, in which these powers had been 
 distributed so as to keep them for the most part distinct from 
 
176 VIRGINIA BILL OF RIGHTS [Ch. XIII 
 
 each other, and so as to mark the proper limitations of each. 
 If, in some instances, the same individuals had exercised more 
 than one of these powers, the distinctions between the depart- 
 ments, and the principles which ought to regulate such distinc- 
 tions, had become known. The people of the colonies, in 
 general, therefore, saw that nothing was so important, in con- 
 structing a government with popular institutions, as to balance 
 each of these departments against the others, so as to leave to 
 neither of them uncontrolled and irresponsible power. 
 
 . . . Three of the colonies, namely, New Hampshire, South 
 Carolina, and Virginia, proceeded to form constitutions of gov- 
 ernment before the Declaration of Independence was adopted, 
 under a special recommendation given to each of them by 
 Congress, in the latter part of the year 1775, addressed to the 
 provincial convention, advising them "to call a full and free 
 representation of the people, to establish such a form of gov- 
 ernment as in their judgment will best promote the happiness 
 of the people, and most effectually secure good order in the 
 province during the continuance of the present dispute between 
 Great Britain and the colonies." . . . On the 15th of May, 
 1776, the Provincial Convention of Virginia proceeded to 
 prepare a declaration of rights and a constitution. The latter 
 declared that the legislative, executive, and judiciary depart- 
 ments ought to be distinct and separate, and divided the 
 legislative department into two branches, the house of delegates 
 and the senate, to be called "the General Assembly of Vir- 
 ginia." The members of the house of delegates were chosen 
 from each county, and one from the city of Williamsburg, and 
 one from the borough of Norfolk. The senate consisted of 
 twenty-four members, chosen from as many districts. A gov- 
 ernor and council of state were chosen annually by joint ballot 
 of both houses. The legislature appointed the judges, who 
 were commissioned by the governor, and held their offices dur- 
 ing good behaviour. 
 
 G. T. Ctjrtis, Constitutional History} I. 80-84. 
 
 BORGEAUD (1892) 
 
 European critics of American democracy almost always make 
 the mistake of looking only at the Federal Constitution of the 
 1 Copyright, 1889, by George Ticknor Curtis. 
 
1887-1898] CRITICAL COMMENT 177 
 
 United States and of leaving unexamined the institutions of 
 the several States. It may be said, in their defence, that the 
 Americans themselves are the cause of this, since, for a cen- 
 tury, they have devoted all their zeal to the history and criti- 
 cism of Federal public law and are only now beginning the 
 systematic study of their local constitutions. But the mistake, 
 though explicable and pardonable, is none the less grave. 
 Recently two masters of political science, M. E. Boutmy, in 
 France, and Mr. James Bryce, in England, have called atten- 
 tion to its unhappy consequences. They have easily shown that 
 the institutions of the States are the edifice itself of which the 
 Federal constitution is but the completion, that they are the 
 real foundation of the national institutions, and that American 
 democracy cannot be understood or judged apart from the 
 environment in which its development has taken place. 
 
 Charles Borgeaud, Adoption and Amendment of Constitutions in Europe 
 and America, translated by C. D. Hazen. 137. 
 
 BRTCE (189G) 
 
 When, in 1776, the thirteen colonies threw off their allegiance 
 to King George III., and declared themselves independent 
 States, the colonial charter naturally became the State constitu- 
 tion. In most cases it was remodelled, with large alterations, 
 by the revolting colony. But in three states it was maintained 
 unchanged, except, of course, so far as Crown authority was 
 concerned, viz., in Massachusetts till 1780, in Connecticut till 
 1818, and in Rhode Island till 1842. The other States ad- 
 mitted to the Union in addition to the original thirteen, have 
 entered it as organized self-governing communities, with their 
 constitutions already made b}' their respective peoples. Each 
 Act of Congress which admits a new State admits it as a sub- 
 sisting commonwealth, sometimes empowering its people to 
 meet and enact a constitution for themselves (subject to con- 
 ditions mentioned in the Act), sometimes accepting and con- 
 firming a constitution so already made by the people. Congress 
 may impose conditions which the State constitution must 
 fulfil ; and in admitting the six newest States has affected to 
 retain the power of maintaining these conditions in force. 
 But the authority of the State constitutions does not flow from 
 
 12 
 
178 VIRGINIA BILL OF RIGHTS [Ch. XHI 
 
 Congress, but from acceptance by the citizens of the States for 
 whicii they are made. Of these instruments, therefore, no less 
 than of the constitutions of the thirteen original States, we may 
 say that although subsequent in date to the Federal Constitu- 
 tion, they are, so far as each State is concerned, de jure prior 
 to it. Their authority over their own citizens is nowise derived 
 from it. Nor is this a mere piece of technical law. The anti- 
 quity of the older States as separate commonwealths, running 
 back into the heroic ages of the first colonization of America 
 and the days of the Eevolutionary War, is a potent source of 
 the local patriotism of their inhabitants, and gives these States 
 a sense of historic growth and Indwelling corporate life which 
 they could not have possessed had they been the mere creatures 
 of the Federal Government. 
 
 James Betce, The American Commonwealth} 300, 301. 
 
 SCHOULER (1S97) 
 
 Expressed in concise and admirable language, the Virginia 
 Bill of Rights (whose sixteen sections we have thus condensed) 
 was broad and universal in sentiment, breathing the spirit of 
 human brotherhood, without a hint of race or class subjection. 
 The declaration served well for example to the other twelve 
 states ; and, so proud of this instrument have Virginians re- 
 mained that they affixed it unchanged to their new constitution 
 of 1830, and, amending it but slightly for the constitution of 
 1850, incorporated it once more intact in the new framework 
 of 1864. 
 
 James Schoulee, Constitutional Studies. III. 33, 34. 
 
 FISHER (1897) 
 
 Virginia's constitution was finished June 29. 1776, — a few 
 months after South Carolina's. It was made by a convention 
 of forty-five members of the house of burgesses, and has pre- 
 fixed to it a bill of rights, adopted June 12, 1776, the first part 
 of which has the language of the opening paragraph of the 
 Declaration of Independence. The rest of the bill of rights 
 is remarkable as being very full and complete and containing 
 more provisions than had ever appeared before in the colonies. 
 Besides the ordinary bill-of-rights provisions, the bill contains 
 ^ Copyright, 1896, by the Macmillan Co. 
 
1887-1898] CRITICAL COMMENT 179 
 
 some political maxims, and among these is the first statement in 
 our constitutions of the principle that the legislative, executive, 
 and judicial departments of government should be separate, 
 and that the same persons should never exercise the powers 
 of any two of them. 
 
 S. G. Fisher, The Evolution of the Constitution of the United States. 75. 
 
 THORPE (189S) 
 
 Before the close of the seventeenth century America was 
 at the threshold of a new civil experience, the distinguishing 
 feature of which was the formulation of the " ancient and un- 
 doubted rights of the people of the colonies." A like process 
 was going on in England. The famous Bill of Rights of 1688 
 is contemporaneous with like measures in the colonies. Ameri- 
 cans are more familiar with the political speculations that 
 dominated the country in 1776 than with those equal in in- 
 fluence, that dominated it nearly a centurj^ earlier. One clause 
 of the English bill of 1688 survives in its original form in the 
 Constitution of the United States, and in many State constitu- 
 tions ; but it was not accompanied in the seventeenth century 
 by those provisions with which it is now associated. . . . 
 
 When the transition from colonies to commonwealths came, 
 it seems, at first glance, almost instantaneous. The State con- 
 stitutions of 1776 seem struck off at a single stroke in a sense 
 that is not true of the national Constitution. A little reflection, 
 however, will demonstrate that the constitutions, state and 
 national, which distinguish America during the last quarter 
 of the eighteenth century are in no sense political miracles or 
 the product of chance or sudden ideas. These instruments 
 must be taken, in the aggregate, as the written form of a 
 political organism long growing and essentially homogeneous. 
 They give the political fabric a common pattern. They regis- 
 ter the civil experience, not of the colonists only, but of the 
 people of other and earlier times. They may be called chap- 
 ters in the Bible of politics contributed by democracy in 
 America. Therefore, they must be considered together as a 
 political unit, whose details are local applications of a few 
 common principles contained in the bill of rights 
 
 The typical declaration is that of Virginia of 1776, which, by 
 
180 VIRGINIA BILL OF RIGHTS [Ch. XTII 
 
 repeated adoption, has long since become common civil property. 
 It consists of sixteen articles, all of which rest for authority on 
 the doctrine of natural rights proclaimed in the opening clause. 
 Men cannot be deprived of their rights, nor can they deprive 
 their posterity of them ; all power is vested in the people, 
 and is derived from them. Consequently, their representatives 
 are their trustees and servants, and at all times amenable to 
 them. As government is instituted for the common benefit, 
 it must be organized in the form that is best " capable of pro- 
 ducing the greatest degree of happiness and safety, and is 
 most effectually secured against the dangers of maladminis- 
 tration." . . . The next State to act was Virginia, which, in 
 April, 1776, elected forty-five delegates to a provincial con- 
 vention. They met at Williamsburg on the 6th of the follow- 
 ing May, and on the 29th of June promulgated the first con- 
 stitution of the commonwealth. This convention, like that 
 of South Carolina of 1778, was a Revolutionary gathering, 
 chosen to supplant the ancient House of Burgesses, and to 
 establish a government that would oi-ganize all the forces of 
 the state in opposition to Great Britain. It was not specifi- 
 cally empowered to make a constitution. The frame of gov- 
 ernment it adopted was destined, however, to continue in force 
 until 1830. This constitution is famed for its bill of rights, 
 drawn up by George Mason. 
 
 F. N. Thorpe, Constitutional History of the American Peopled 34,35, 37-49. 
 
 CHANNING (1898) 
 
 The State Constitutions, 1775, 1776, — Another important 
 step in bringing about the change in sentiment noted in the 
 preceding section, was the necessity for making new provisions 
 for government in the several colonies. In some cases, as 
 in Virginia and New Hampshire, the departure of the royal 
 governors left the people without any government; in other 
 cases, as in Massachusetts, resistance to the royal authorities 
 made new arrangements necessary. In the last-named colony, 
 a revolutionary body termed the Provincial Congress had as- 
 sumed charge of the government of the province. The people, 
 however, were restless, and those in power turned to the Con- 
 tinental Congress for advice. On June 9, 1775, that body 
 1 Copyright, 1898, by Harper & Brothers. 
 
1887-1898] CRITICAL COMMENT 181 
 
 voted, that as no obedience was due to the act of Parliament 
 altering the charter of the colony of Massachusetts, nor to a 
 governor who would not obey the direction thereof, he should 
 be considered as absent and the colony were advised to pro- 
 ceed under the charter without a governor "until a governor 
 of his Majesty's appointment will consent to govern the colony 
 according to the charter." . . . Among the first colonies to act 
 under this suggestion was Virginia, which was at the moment 
 governed by a convention elected by the people. It adopted 
 (June, 1776) a constitution which consisted of three parts: a 
 Bill of Rights by George Mason, a Declaration of Indepen- 
 dence by Thomas Jefferson, and a Frame of Government. 
 The first of these contains an admirable exposition of the 
 American theory of government, equalled in that respect only 
 by the Declaration of Independence of July, 1776, and by the 
 Bill of Rights drawn by John Adams and prefixed to the 
 Massachusetts constitution of 1780. The clause in the Vir- 
 ginia Bill of Rights declaring for freedom of religion was the 
 earliest enunciation on that subject during the Revolutionary 
 era ; it was probably the work of Madison and Patrick Henry. 
 None of these early constitutions was submitted to the people 
 for ratification, with the exception of that of Massachusetts 
 (1780), which was also drafted by a body especially chosen 
 by the people for that purpose. 
 
 Edward Channing, Students' History of the United States. 198, 199, 200. 
 
182 DECLARATION OF INDEPENDENCE [Ch. XIV 
 
 Chapter XIV 
 
 DECLARATION OF INDEPENDENCE 
 
 SUGGESTIONS 
 
 The Second Continental Congress met in Ptiiladelphia, in the State 
 House (Independence Hall), May 10, 1775. The King's Proclama- 
 tion declaring the Colonies in rebellion, and calling for volunteers 
 to force them to submit to taxation without representation, and other 
 unjust measures, finally convinced the delegates to Congress of the 
 impossibility of our continuing our allegiance to the English Crown. 
 This document was authorized by the staunch patriots who met 
 together in Philadelphia, in June of 1776, to consider the resolution of 
 the 7th, when the Second Continental Congress resolved " That these 
 United Colonies are, and of right ought to be, free and independent 
 states." John Adams of Massachusetts seconded the motion. Later, 
 a committee of five — Thomas Jefferson of Virginia, John Adarns of 
 Massachusetts, Benjamin Franklin of Pennsylvania, Roger Sherman 
 of Connecticut, and Robert R. Livingston of New York — was 
 appointed to draft the Declaration of Independence. Jefferson drew 
 up the paper, though a few alterations were made in it by the Com- 
 mittee and by Congress. It was adopted on the evening of July 4, 
 1776, and signed by John Hancock, President of Congress, and 
 Charles Thomson, Secretary. On August 2, 1776, it was signed by 
 the members, representing the thirteen states. 
 
 The text and comments upon the famous Declaration of Independ- 
 ence are but a beginning for the intensive work that may be done 
 upon the document. Each article may be illustrated by referring to 
 the earlier pieces ; and it will be well for each student who is making 
 a thorough study of the subject to look for fresh examples which will 
 strengthen the letter of this declaration. Here again, as in the period 
 of the Stuarts, we find a group of men standing behind the event and 
 its issue, who in themselves were not only exponents of their era, but 
 who helped to shape it. The principles laid down by these patriots 
 formed a basis for civil and federal ideas which influenced the con- 
 stitutional development of succeeding generations. 
 
 For Outlines and Material, see Appendix A. 
 
1776J TEXT 183 
 
 DOCUMENT 
 The Declaration of Independence 
 In congress, July 4, 1776. 
 Wqz unanimous ©eclaration of tije tijinecn uniteii Facsimile of 
 
 States of America. the original 
 
 document in 
 SHfjen in the Course of human events, it becomes *^^® Depart- 
 necessary for one people to dissolve the political stite, Wash- 
 bands which have connected them with another, and mgton. 
 to assume among the powers of the earth, the 
 separate and equal station to which the Laws of 
 Nature and of Nature's God entitle them, a decent 
 respect to the opinions of mankind requires that 
 they should declare the causes which impel them to 
 the separation. We hold these truths to be I. Statement 
 
 self-evident, that all men are created equal, that o^'' s®^^- 
 j.\ ■ 1 1 1 ,, . /-N . \ . evident 
 
 they are endowed by then- Creator with certani truths," 
 
 unalienable Rights, that among these are Life, many of 
 Liberty and the pursuit of Happiness, — That to bedded in 
 secure these rights. Governments are instituted the English 
 among Men, deriving their just powers from the see"v"irc?"*^' 
 consent of the governed, — That whenever any Bill of 
 Form of Government becomes destructive of these Riglits, 1776. 
 ends, it is the Right of the People to alter or to 
 abolish it, and to institute new Government, laying 
 its foundation on such principles and organizing its 
 powers in such form, as to them shall seem most 
 likely to effect their Safety and Happiness. — Prud- 
 ence, indeed, will dictate that Governments long 
 established should not be changed for light and 
 transient causes ; and accordingly all experience 
 hath shewn, that mankind are more disposed to 
 suffer, while evils are sufferable, than to right them- 
 selves by abolishing the forms to which they are 
 accustomed. But when a long train of abuses and 
 usurpations, pursuing invariably the same Object 
 evinces a design to reduce them under absolute 
 
184 
 
 DECLARATION OF INDEPENDENCE [Ch. XIV 
 
 List of 
 Grievances. 
 
 See Magna 
 Charta, art. 
 xvii. 
 
 Assembly in 
 Virs^inia, 
 
 England 
 commanded 
 Colonial 
 Governors to 
 grant no 
 more land, 
 and to allow 
 
 Despotism, it is their right, it is their duty, to throw 
 off such Government, and to provide new Guards 
 
 for their future security. Such has been the 
 
 patient sufferance of these Colonies ; and such is 
 now the necessity which constrains them to alter 
 their former Systems of Government. The history 
 of the present King of Great Britain is a history of 
 repeated injuries and usurpations, all having in 
 direct object the establishment of an absolute 
 Tyranny over these States. To prove this, let Facts 
 
 be submitted to a candid world. He has refused 
 
 his Assent to Laws, the most wholesome and neces- 
 sary for the public good. He has forbidden his 
 
 Governors to pass Laws of immediate and pressing 
 importance, unless suspended in their operation till 
 his Assent should be obtained ; and when so sus- 
 pended, he has utterly neglected to attend to them. 
 
 He has refused to pass other Laws for the 
 
 accommodation of large districts of people, unless 
 those people would relinquish the right of Represen- 
 tation in the Legislature, a right inestimable to them 
 
 and formidable to tyrants only. He has called 
 
 together legislative bodies at places unusual, uncom- 
 fortable, and distant from the depository of their 
 public Records, for the sole purpose of fatiguing 
 
 them into compliance with his measures. He 
 
 has dissolved Representative Houses repeatedly, for 
 opposing with manly firmness his invasions on the 
 
 rights of the people. He has refused for a long 
 
 time, after such dissolutions, to cause others to be 
 elected ; whereby the Legislative powers, incapable 
 of Annihilation, have returned to the People at large 
 for their exercise ; the State remaining in the mean 
 time exposed to all the dangers of invasion from 
 without, and convulsions within. He has en- 
 deavoured to prevent the population of these States ; 
 for that purpose obstructing the Laws for Naturali- 
 zation of Foreigners ; refusing to pass others to 
 encourage their migration hither, and raising the 
 
1776] TEXT 185 
 
 conditions of new Appropriations of Lands. no settle- 
 He has obstructed the Administration of Justice, by ^^^^^ ^'^^^ 
 refusing his Assent to Laws for establishing Judi- "sources of 
 
 ciary powers. He has made Judges dependent Atlantic 
 
 on his Will alone, for the tenure of their offices, and liiyers " 
 
 the amount and payment of their salaries. He 
 
 has erected a multitude of New Offices, and sent 
 hither swarms of Officers to harass our people, and 
 
 eat out their substance. He has kept among jSo called 
 
 us, in times of peace, Standing Armies without the '' Quartering 
 
 Consent of our legislatures. He has affected to 
 
 render the Military independent of and superior to 
 
 the Civil power. He has combined with others Parliament. 
 
 to subject us to a jurisdiction foreign to our consti- 
 tution, and unacknowledged by our laws ; giving 
 his Assent to their Acts of pretended Legislation : 
 
 For quartering large bodies of armed troops 
 
 among us : For protecting them, by a mock 
 
 Trial, from punishment for any Murders which they 
 should commit on the Inhabitants of these States : 
 
 For cutting off our Trade with all parts of the Port Bill. 
 
 world : ■ For imposing Taxes on us without our Stamp Act, 
 
 Consent: For depriving us in many cases, of Tea Tax, etc. 
 
 the benefits of Trial by Jury : For transporting changed to 
 
 us beyond Seas to be tried for pretended offences: Vice-Admi- 
 
 For abolishing the free System of English Laws ^'altycourt. 
 
 . See Trans- 
 
 in a neighbouring Province, establishing therein an portation 
 
 Arbitrary government, and enlarging its Boundaries Bill. 
 
 so as to render it at once an example and fit instru- Qji*^^^^ ■^^^^' 
 
 17 (4. 
 
 ment for introducing the same absolute rule into 
 
 these Colonies : For taking away our Charters, 
 
 abolishing our most valuable Laws, and altering Conn., K. I., 
 
 fundamentally the Forms of our Governments. Mass., etc. 
 
 For suspending our own Legislatures, and declaring Legislatures 
 
 themselves invested with yjower to legislate for us of Va., Md., 
 
 Ga Mass. 
 in all cases whatsoever. — — He has abdicated ]^_ y_ '' 
 
 Grovernment here, by declaring us out of his Protec- Arrival of 
 
 tion and waging War against us : He has plun- Grage and 
 
 forces in 
 dered our seas, ravaged our Coasts, burnt our towns, Boston. 
 
186 
 
 DECLARATION OF INDEPENDENCE [Ch. XIV 
 
 Lexington, and destroyed the lives of our people 
 
 Concord, and 
 
 Bunker Hill. 
 
 Hessian 
 
 soldiers. 
 
 He is all 
 
 This griev- 
 ance was not 
 settled until 
 the War of 
 
 1812. 
 
 The Conti- 
 nental Con- 
 gress had 
 also raised 
 Indians to 
 fight the 
 British, 1775. 
 
 Va. Resolu- 
 tions 1765, 
 Declaration 
 of Rights and 
 Grievances, 
 1765. 
 
 Declaration 
 of Rights, 
 1774. 
 
 Statement 
 of Inde- 
 pendence. 
 
 this time transporting large Armies of foreign Mer- 
 cenaries to compleat the w^orks of death, desolation 
 and tyranny, already begun with circumstances of 
 Cruelty & perfidy scarcely paralleled in the most 
 barbarous ages, and totally unworthy the Head of 
 
 a civilized nation. He has constrained our fellow 
 
 Citizens taken Captive on the high Seas to bear 
 Arms against their Countrj', to become the execu- 
 tioners of their friends and Brethren, or to fall 
 
 themselves by their Hands. He has excited 
 
 domestic insurrections amongst us, and has endeav- 
 oured to bring on the inhabitants of our frontiers, 
 the merciless Indian Savages, whose known rule of 
 warfare, is an undistinguished destruction of all 
 
 ages, sexes and conditions. In every stage of 
 
 these Oppressions We have Petitioned for Redress in 
 the most humble terms : Our repeated Petitions have 
 been answered only by repeated injury. A Prince, 
 whose character is thus marked by every act which 
 may define a Tyrant, is unfit to be the ruler of a free 
 
 People. Nor have We been wanting in attention 
 
 to our Brittish brethren. We have warned them from 
 time to time of attempts by their legislature to 
 extend an unwarrantable jurisdiction over us. We 
 have reminded them of the circumstances of our 
 emigration and settlement here. We have appealed 
 to their native justice and magnanimity, and we 
 have conjured them by the ties of our common kin- 
 dred to disavow these usurpations, which, would 
 inevitably interrupt our connections and correspond- 
 ence. They too have been deaf to the voice of 
 justice and of consanguinity. We must, therefore, 
 acquiesce in the necessity, which denounces our 
 Separation, and hold them, as we hold the rest of 
 mankind, Enemies in War, in Peace Friends. 
 
 We, therefore, the Representatives of the united 
 States of America, in General Congress, Assembled, 
 appealing to the Supreme Judge of the world for 
 
1776] TEXT 187 
 
 the rectitude of bur intentions, do, in the Name, 
 and by Authority of the good People of these Colo- 
 nies, solemnly publish and declare. That these 
 United Colonies are, and of Right ought to be Free 
 and Independent States ; that they are Absolved 
 from all Allegiance to the British Crown, and that 
 all political connection between them and the State 
 of G-reat Britain, is and ought to be totally dissolved; 
 and that as Free and Independent States, they have 
 full Power to levy War, conclude Peace, contract 
 Alliances, establish Commerce, and to do all other 
 Acts and Things which Independent States may of 
 right do. And for the support of this Declara- 
 tion, with a firm reliance on the protection of divine 
 Providence, we mutually pledge to each other our 
 Lives, our Fortunes and our sacred Honour. 
 
 JOHN HANCOCK 
 
 New Hampshire — Josiah Bartlett, Wm. The names 
 Whipple, Matthew Thornton. ers^arelSre 
 
 Massachusetts Bay — ■ Saml. Adams, John spelled as in 
 Adams, Robt. Treat Paine, Elbridge G-erry. ^"^ original. 
 
 Rhode Island — Step. Hopkins, William of the states 
 Ellery. do not ap- 
 
 ConnecticAit — Roger Sherman, Sam'el Hun- erou'pino- is 
 TiNGTON, Wm.. Williams, Oliver Wolcott. the same, 
 
 New YorJc — Wm. Floyd, Phil. Livingston, ^^^01^;? 
 Frans. Lewis, Lewis Morris. thew Thorn- 
 
 New Jersey — Richd. Stockton, Jno. Wither- Y'f;'^ ^^}^y 
 spooN, Fras. Hopkinson, John Hart, Abra. Clark. verWolcott's 
 
 Pennsylvania — Robt. Morris, Benjamin in tlie origi- 
 RusH, Benja. Franklin, John Morton, Geo. ment. 
 Clymer, Jas. Smith, G-eo. Taylor, James Wilson, 
 Geo. Ross. 
 
 Delaioare — C^sar Rodney, Geo. Read, Tho. 
 M'Kean. 
 
 Maryland — Samuel Chase, Wm. Paca, Thos. 
 Stone, Charles Carroll of Carrollton. 
 
 Virginia — George Wythe, Richard Henry 
 Lee, Th. Jefferson, Benja. Harrison, Thos. 
 
188 DECLARATION OF INDEPENDENCE [Ch. XIV 
 
 Nelson, jr., Francis Lightfoot Lee, Carter 
 Braxton. 
 
 North Carolina — Wm. Hooper, Joseph 
 Hewes, John Penn. 
 
 Sotith Carolina — Edward Rutledge, Thos. 
 Heyward, Junr., Thomas Lynch, Junr., Arthur 
 Middleton. 
 
 Georgia — Button Gwinnett, Lyman Hall, 
 Geo. Walton. 
 
 CONTEMPORARY EXPOSITION 
 
 john adams (1776) 
 John Adams to Mrs. Adams 
 
 Philadelphia July 3 [morning], 1776. 
 Your favour of June 17, dated at Plymouth, was handed me 
 yesterday by the post. I was much pleased to find that you 
 had taken a journey to Plymouth to see your friends, in the 
 long absence of one whom you may wish to see. The excursion 
 will be an amusement, and will serve your health. How happy 
 would it have made me to have taken this journey with you ! 
 
 Yesterday the greatest question was decided which ever was 
 debated in America; and a greater, perhaps, never was or will 
 be decided among men. A resolution was passed, without one 
 dissenting colony : 
 
 " That these United Colonies are, and of right ought to be, 
 free and independent states ; and, as free and independent states, 
 they have, and of right ought to have, full power to make war, 
 conclude peace, establish commerce, and to do all other acts 
 and things which other states may rightfully do." 
 
 You will see, in a few days, a declaration, setting forth the 
 causes which have impelled us to this revolution, and the 
 reasons which will justify it in the sight of God and man. 
 A plan of confederation will be taken up in a few days. 
 
 When I look back to the year 1761, and recollect the argu- 
 ment concerning writs of assistance, in the superior court, 
 which I have hitherto considered as the commencement of the 
 controversy between Great Britain and America, and run 
 
1776-1821] CONTEMPORARY EXPOSITION 189 
 
 through the whole period from that time to this, and recollect 
 the series of political events, the chain of causes and effects, 
 I am surprised at the suddenness as well as greatness of this 
 revolution. 
 
 Britain has been filled with folly, and America with wisdom ; 
 at least this is my judgment — time must determine. It is 
 the will of Heaven that the two countries should be sundered 
 forever. It may be the will of Heaven that America shall 
 suffer calamities still more wasting, and distresses still more 
 dreadful. If this is to be the case, it will have this good effect 
 at least, it will inspire us with many virtues which we have not, 
 and correct many errors, follies, and vices, which threaten to 
 disturb, dishonour, and destroy us. The furnace of aflSiction 
 produces refinement in states as well as individuals. And the 
 new governments we are assuming in every part, will require a 
 purification from our vices, and an augmentation of our virtues, 
 or they will be no blessings. The people will have unbounded 
 power ; and the people are extremely addicted to corruption 
 and venality, as well as the great. I am not without apprehen- 
 sions from this quarter ; but I must submit all my hopes and 
 fears to an over ruling Providence, in which, unfashionable as 
 it may be, I firmly believe. 
 
 John Adams. 
 
 John Adams to Mrs. Adams. 
 
 Philadelphia, July S {evening'], 1776. 
 
 Had a Declaration of Independence been made seven months 
 ago, it would have been attended with many great and glorious 
 effects. We might, before this hour, have formed alliance with 
 foreign states. We should have mastered Quebec, and been in 
 possession of Canada. 
 
 You will, perhaps, wonder how such a declaration would 
 have influenced our affairs in Canada ; but, if I could write 
 with freedom, I could easily convince you that it would, and 
 explain to you the manner how. Many gentlemen in high 
 stations, and of great influence, have been duped, by the minis- 
 terial bubble of commissioners, to treat ; and, in real, sincere 
 expectation of this event, which they so fondly wished, they 
 have been slow and languid in promoting measures for the re- 
 
190 DECLARATION OF INDEPENDENCE [Ch. XIV 
 
 duction of that province. Others there are in the colonies, who 
 really wished that our enterprise in Canada would be defeated ; 
 that the colonies might be brought into danger and distress 
 between two fires, and be thus induced to submit. Others 
 really wished to defeat the expedition to Canada, lest the con- 
 quest of it should elevate the minds of the people too much to 
 hearken to those terms of reconciliation which they believed 
 would be offered us. These jarring views, wishes, and designs, 
 occasioned an opposition to many salutary measures which were 
 proposed for the support of that expedition, and caused ob- 
 structions, embarrassments, and studied delays, which have 
 finally lost iis the province. 
 
 All these causes, however, in conjunction, would not have dis- 
 appointed us, if it had not been for a misfortune which could not 
 have been foreseen, and perhaps could not have been prevented 
 — I mean the prevalence of the smallpox among our troops. 
 This fatal pestilence completed our destruction. It is a frown 
 of Providence upon us, which we ought to lay to heart. 
 
 But, on the other hand, the delay of this declaration to this 
 time has many great advantages attending it. The hopes of 
 reconciliation which were fondly entertained by multitudes of 
 honest and well meaning, though short-sighted and mistaken 
 people, have been gradually, and at last totally, extinguished. 
 Time has been given for the whole people maturely to consider 
 the great question of independence, and to ripen their judgment, 
 dissipate their fears, and allure their hopes, by discussing it in 
 newspapers and pamphlets — by debating it in assemblies, con- 
 veutions, committees of safety and inspection — in town and 
 county meetings, as well as in private conversations ; so that 
 the whole people, in every colony, have now adopted it as their 
 own act. This will cement the union, and avoid those heats, 
 and perhaps convulsions, which might have been occasioned by 
 such a declaration six months ago. 
 
 But the day is past. The second day of July, 1776, will 
 be a memorable epocha in the history of America. I am apt to 
 believe that it will be celebrated by succeeding generations, as 
 the great Anniversary Festival. It ought to be commemorated, 
 as the day of deliverance by solemn acts of devotion to God 
 Almighty. It ought to..be solemnized with pomp, shews, games. 
 
1776-1821] CONTEMPORARY EXPOSITION 191 
 
 sports, guns, bells, bonfires and illuminations, from one end of 
 the continent to the other, from this time forward forever. 
 
 You will think me transported with enthusiasm ; but I am not. 
 I am well aware of the toil, and blood, and treasure, that it 
 will cost us to maintain this declaration, and support and 
 defend these states. Yet, through all the gloom, I can see the 
 rays of light and glory ; I can see that the end is more than 
 worth all the means, and that posterity will triumph, although 
 you and I may rue, which I hope we shall not. 
 
 John Adams. 
 
 John Adams and Mrs. Abigail Adams, Familiar Letters during the 
 Revolution. 105, 106. 
 
 RAMS AT (1777) 
 
 The eagerness for independence resulted more from feeling 
 than reasoning. The advantages of an unfettered trade, the 
 prospect of honours and emoluments in administering a new 
 government, were of themselves insufficient motives for adopt- 
 ing this bold measure. But what was wanting from considera- 
 tions of this kind, was made up by the perseverance of Great 
 Britain, in her schemes of coercion and conquest. The deter- 
 mined resolution of the mother country to subdue the colonists, 
 together with the plans she adopted for accomplishing that 
 purpose, and their equally determined resolution to appeal to 
 Heaven rather than submit, made a declaration of independence 
 as necessary in 1776, as was the non-importation agreement of 
 1774, or the assumption of arms in 1775. The last naturally 
 resulted from the first. The revolution was not forced on the 
 people by ambitious leaders grasping at supreme power, but 
 every measure of it was forced on Congress, by the necessity 
 of the case, and the voice of the people. The change of the 
 public mind of America respecting connexion with Great- 
 Britain, is without a parallel. In the short space of two years, 
 nearly three millions of people passed over from the love and 
 duty of loyal subjects, to the hatred and resentment of enemies. 
 
 Ramsay, American Revolution, I. 430-432. 
 
192 DECLARATION OF INDEPENDENCE [Ch. XIV 
 
 JEFFERSON (1821) 
 
 Congress proceeded the same day to consider the Declaration 
 of Independence, which had been reported and lain on the table 
 the Friday preceding, and on Monday referred to a committee 
 of the whole. The pusillanimous idea that we had friends in 
 England worth keeping terms with, still haunted the minds of 
 many. For this reason, those passages which conveyed cen- 
 sures on the people of England were struck out, lest they 
 should give them offence. The clause, too, reprobating the 
 enslaving the inhabitants of Africa, was struck out in complai- 
 sance to South Carolina and Georgia, who had never attempted 
 to restrain the importation of slaves, and who, on the contrary, 
 still wished to continue it. Our Northern brethren also, I 
 believe, felt a little tender under those censures ; for though 
 their people had very few slaves themselves, yet they had been 
 pretty considerable carriers of them to others. The debates?, 
 having taken up the greater parts of the 2nd, 3rd, and 4th days 
 of July, were, on the evening of the last, closed ; the Declara- 
 tion was reported by the committee, agreed to by the House, 
 and signed by every member present, except Mr. Dickinson. 
 
 Thomas Jeffekson, Works. I. 19. 
 
 CRITICAL COMMENT 
 
 WEBSTER (1826) 
 
 The Congress of the Revolution, fellow-citizens, sat with 
 closed doors, and no report of its debates was ever made. The 
 discussion, therefore, which accompanied this great measure, 
 has never been preserved, except in memory and by tradition. 
 . . . If we contemplate it from the point where they then stood, 
 no question could be more full of interest ; if we look at it now, 
 and judge of its importance by its effects, it appears of still 
 greater magnitude. 
 
 Let us, then, bring before us the assembly, which was about 
 to decide a question thus big with the fate of empire. Let us 
 open their doors and look in upon their deliberations. Let us 
 survey the anxious and care-worn countenances, let us hear the 
 firm-toned voices, of this baud of patriots. 
 
1826-1899] CRITICAL COMMENT 193 
 
 Hancock presides over the solemn sitting ; and one of those 
 not yet prepared to pronounce for absolute independence is 
 on the floor, and is urging his reasons for dissenting from the 
 declaration. 
 
 "Let us pause ! This step, once taken, cannot be retraced. 
 This resolution, once passed, will cut off all hope of reconcilia- 
 tion. If success attend the arms of England, we shall then be 
 no longer Colonies, with charters and with privileges ; these 
 will all be forfeited by this act ; and we shall be in the condition 
 of other conquered people, at the mei'cy of the conquerors. 
 For ourselves, we may be ready to run the hazard ; but are we 
 ready to carry the country to that length? Is success so prob- 
 able as to justify it? Where is the military, where the naval 
 power, by which we are to resist the whole strength of the arm 
 of England, for she will exert that strength to the utmost? 
 Can we rely on the constancy and perseverance of the people? 
 or will they not act as the people of other countries have acted, 
 and, wearied with a long war, submit in the end to a worse 
 oppression? While we stand on our old ground, and insist on 
 redress of grievances, we know we are right, and are not 
 answerable for consequences. Nothing, then, can be imputed 
 to us. But if we now change our object, carrj^ our pretensions 
 farther, and set up for absolute independence, we shall lose 
 the sympathy of mankind. We shall no longer be defending 
 what we possess, but struggling for something which we never 
 did possess, and which we have solemnly and uniformly dis- 
 claimed all intention of pursuing, from the very outset of the 
 troubles. Abandoning thus our old grolind, of resistance only 
 to arbitrary acts of oppression, the nations will believe the 
 whole to have been mere pretence, and they will look on us, 
 not as injured, but as ambitious subjects. 
 
 "I shudder before this responsibility. It will be on us, if, 
 relinquishing the ground on which we have stood so long, and 
 stood so safely, we now proclaim independence, and carry on 
 the war for that object, while these cities burn, these pleasant 
 fields whiten and bleach with the bones of their owners, and 
 these streams run blood. It will be upon us, it will be upon us, 
 if, failing to maintain this unseasonable and ill-judged declara- 
 tion, a sterner despotism, maintained by military power, shall 
 
 13 
 
194 DECLARATION OF INDEPENDENCE [Ch. XIV 
 
 be established over our posterity, when we ourselves, given up 
 by an exhausted, a harassed, a misled people, shall have 
 expiated our rashness and atoned for our presumption on the 
 scaffold." 
 
 It was for Mr. Adams to reply to arguments like these. We 
 know his opinions, and we know his character. He would 
 commence with his accustomed directness and earnestness. 
 
 " Sink or swim, live or die, survive or perish, I give my hand 
 and my heart to this vote. It is true, indeed, that in the 
 beginning we aimed not at independence. But there's a 
 Divinity which shapes our ends. The injustice of England has 
 driven us to arms; and, blinded to her own interest for our 
 good, she has obstinately persisted, till independence is now 
 within our grasp. We have but to reach forth to it, and it is 
 ours. Why, then, should we defer the Declaration? Is any 
 man so weak as now to hope for a reconciliation with England, 
 which shall leave either safety to the country and its liberties, 
 or safety to his own life and his own honour? Are not you, 
 Sir, who sit in that chair, is not he, our venerable colleague 
 near you, are you not both already the proscribed and pre- 
 destined objects of punishment and of vengeance? Cut off 
 from all hope of royal clemency, what are you, what can you 
 be, while the power of England remains, but outlaws ? If we 
 postpone independence, do we mean to carry on, or to give up, 
 the war? Do we mean to submit to the measures of Parlia- 
 ment, Boston Port Bill and all? Do we mean to submit, and 
 consent that we ourselves shall be ground to powder, and our 
 country and its rights trodden down in the dust? I know we 
 do not mean to submit. We never shall submit. Do we in- 
 tend to violate that most solemn obligation ever entered into 
 by men, that plighting, befoi-e God, of our sacred honour to 
 Washington, when, putting him forth to incur the dangers of 
 war, as well as the political hazards of the times, we promised 
 to adhere to him, in every extremity, with our fortunes and our 
 lives ? I know there is not a man here, who would not rather 
 see a general conflagration sweep over the land, or an earth- 
 quake sink it, than one jot or tittle of that plighted faith fall to 
 the gi'ound. For myself, having, twelve months ago, in this 
 place, moved you, that George Washington be appointed com- 
 
1826-1899] CRITICAL COMMENT l95 
 
 mander of the forces raised, or to be raised, for defence of 
 American liberty, may my right hand forget her cunning, and 
 my tongue cleave to the roof of my mouth, if I hesitate or 
 waver in the support I give him. 
 
 "The war, then, must go on. We must fight it through. 
 And if the war must go on, why put off longer the Declaration 
 of Independence? That measure will strengthen us. It will 
 give us character abroad. The nations will then treat with us, 
 which they never can do while we acknowledge ourselves sub- 
 jects, in arms against our sovereign. Nay, I maintain that 
 England herself will sooner treat for peace with us on the foot- 
 ing of independence, than consent, by repealing her acts, to 
 acknowledge that her whole conduct towards us has been a 
 course of injustice and oppression. Her pride will be less 
 wounded by submitting to that course of things which now 
 predestinates our independence, than by yielding the points in 
 controversy to her rebellious subjects. The former she would 
 regard as the result of fortune ; the latter she would feel as her 
 own deep disgrace. Why, then, why, then. Sir, do we not as 
 soon as possible change this from a civil to a national war? 
 And since we must fight it through, why not put ourselves in a 
 state to enjoy all the benefits of victory, if we gain the victory ? 
 
 "If we fail, it can be no worse for us. But we shall not fail. 
 The cause will raise up armies ; the cause will create navies. 
 The people, the people, if we are true to them, will carry us, 
 and will carry themselves, gloriouslj^, through this struggle. 
 I care not how fickle other people have been found. I know 
 the people of these Colonies, and I know that resistance to 
 British aggression is deep and settled in their hearts and can- 
 not be eradicated. Every Colony, indeed, has expressed its 
 willingness to follow, if we but take the lead. Sir, the Decla- 
 ration will inspire the people with increased courage. Instead 
 of a long and bloody war for the restoration of privileges, for 
 redress of grievances, for chartered immunities, held under a 
 British king, set before them the glorious object of entire 
 independence, and it will breathe into them anew the breath of 
 life. Read this Declaration at the head of the army; every 
 sword will be drawn from its scabbard, and the solemn vow 
 uttered, to maintain it, or to perish on the bed of honor. Pub- 
 
196 DECLARATION OF INDEPENDENCE [Ch. XIV 
 
 lish it from the pulpit; religion will approve it, and the love of 
 religious liberty will cling round it, resolved to stand with it, or 
 fall with it. Send it to the public halls ; proclaim it there ; let 
 them hear it who heard the first roar of the enemy's cannon ; let 
 them see it who saw their brothers and their sons fall on the 
 field of Bunker Hill, and in the streets of Lexington and Con- 
 cord, and the very walls will cry out in its support. 
 
 " Sir, I know the uncertainty of human affairs, but I see, I 
 see clearly, through this day's business. You and I, indeed, 
 may rue it. We may not live to the time when this Declaration 
 shall be made good. We may die ; die colonists ; die slaves ; 
 die, it may be, ignominiously and on the scaffold. Be it so. 
 
 " Be it so. If it be the pleasure of Heaven that my country 
 shall require the poor offering of my life, the victim shall be 
 ready, at the appointed hour of sacrifice, come when that hour 
 may. But while I do live, let me have a country, or at least 
 the hope of a country, and that a free country. 
 
 "But whatever may be our fate, be assured, be assured that 
 this Declaration will stand. It may cost treasure, and it may cost 
 blood ; but it will stand, and it will richly compensate for both. 
 Through the thick gloom of the present I see the brightness of 
 the future, as the sun in heaven. We shall make this a glorious, 
 an immortal day. When we are in our graves, our children will 
 honour it. They will celebrate it with thanksgiving, with fes- 
 tivity, with bonfires, and illuminations. On its annual return 
 they will shed tears, copious, gushing tears, not of subjection 
 and slavery, not of agony and distress, but of exultation, of 
 gratitude, and of joy. Sir, before God, I believe the hour is 
 come. My judgment approves this measure, and my whole 
 heart is in it. All that I have, and all that I am, abd all that 
 I hope, in this life, I am now ready here to stake upon it ; and 
 I leave off as I begun, that live or die, survive or perish, I am 
 for the Declaration. It is my living sentiment, and by the 
 blessing of God it shall be my dying sentiment, Independence, 
 now, and INDEPENDENCE FOR EVER." 
 
 Danikl Webster, Works. I. 130-136, 
 
1826-18991 CRITICAL COMMENT 197 
 
 STORY (1833) 
 
 From the moment of the declaration of independence, if not 
 for most purposes at an antecedent period, the united colonies 
 must be considered as being a nation de facto, having a general 
 government over it, created, and acting by the general consent 
 of the people of all the colonies. The powers of that govern- 
 ment were not, and indeed could not be well defined. But still 
 its exclusive sovereignty, in many cases, was firmly established, 
 and its controlling power over the states was in most, if not in 
 all national measures, universally admitted. 
 
 Story, Constitution of the United States. II. 89. 
 
 LIVERMORE (1862) 
 
 The primal American Magna Charta, by which the Founders 
 of the Republic asserted the right of the people to form a con- 
 stitution and government of their own, was proclaimed on the 
 4th of July, 1776. Its language is clear and explicit. The 
 authors were men of sense and of learning. They knew the 
 meaning of the words they used. Was it for " glittering gene- 
 ralities " that they pledged their lives, their fortunes, and their 
 sacred honor, or did they regard the sentiments of that im- 
 mortal document as solemn verities? In those times which 
 tried men's souls, were they guilty of attempting to amuse the 
 fancy by a rhetorical flourish, or, what is worse, to delude their 
 fellow-citizens by the merest cant, or did they intend deliber- 
 ately and reverently to publish to the world their Political Con- 
 fession of Faith, and to endeavour to show that faith by their 
 
 works ? 
 
 George IjIVERMORe, An Historical Research. 19. 
 
 J. R. GREEN (1874) 
 
 "Washington more than any of his fellow colonists repre- 
 sented the clinging of the Virginia land-owners to the mother- 
 country, and his acceptance of the command of the continental 
 army proved that even the most moderate among them had no 
 hope now save in arms. . . . The colonies of the south, the 
 last to join the struggle, had, in fact, expelled their governors in 
 1775. These decisive steps were followed by the great act 
 
198 DECLARATION OF INDEPENDENCE [Ch. XIV 
 
 with which American history begins, the adoption on the 4th 
 of July, 1776, by the delegates in Congress of a Declaration of 
 Independence. 
 
 J. R. Green, Short History of the English People. 779, 780. 
 
 VON HOLST (1875) 
 
 The individual colonies, on the other hand, considered them- 
 selves, up to the time of the Declaration of Independence, as 
 legally dependent upon England and did not take a single step 
 which could have placed them before the mother country or the 
 world in the light of de facto sovereign states. They remained 
 colonies until the " representatives of the United States" "in 
 the name of the good people of these colonies" solemnly 
 declared " these united colonies" to be " free and independent 
 states." The transformation of the colonies into " states " was, 
 therefore, not the result of the independent action of the 
 individual colonies. It was accomplished thi'ough the " repre- 
 sentatives of the United States," that is, through the revolu- 
 tionary congress, in the name of the whole people. Each 
 individual colony became a state only in so far as it belonged 
 to the United States, and in so far as its population constituted 
 a part of the people. The thirteen colonies did not, as thirteen 
 separate and mutually independent commonwealths enter into a 
 compact to sever the bonds which connected them with their 
 common mother country, and at the same time to proclaim the 
 act in a common manifesto to the world ; but the " one people " 
 of the united colonies dissolved that political connection with 
 the English nation, and proclaimed themselves resolved, hence- 
 forth, to constitute the one perfectly independent people of the 
 United States. The Declaration of Independence did not 
 create thirteen sovereign states, but the representatives of the 
 people declared that the former English colonies, under the 
 name which they had assumed of the United States of Amer- 
 ica, became, from the fourth day of July, 1776, a sovereign 
 state and a member of the family of nations, recognized by 
 the law of nations ; and further, that the people would support 
 their representatives with their blood and treasure, in their en- 
 deavour to make this declaration a universally recognized fact. 
 Neither congress nor the people relied in this upon any positive 
 
1826-1899] CRITICAL COMMENT 199 
 
 right belonging either to the individual colonies or to the col- 
 onies as a whole. Rather did the Declaration of Independence 
 and the war destroy all existing political jural relations, and 
 seek their moral justification in the right of revolution inherent 
 in every people in extreme emergencies. 
 
 Dk. H. von Holst, Tke Constitutional History of the United States. I. 5-7. 
 LEGKY (1SS2) 
 
 The petition 'of Congress to the King, which was the last 
 serious effort of America for pacification, was duly taken over 
 to England ; but, after a short delay. Lord Dartmouth informed 
 the delegates that ' no answer would be given to it.' An Act 
 of Parliament was passed authorizing the confiscation of all 
 American ships and cargoes, and of all vessels of other nations 
 trading with the American ports ; and by a clause of especial 
 atrocity, the commanders of the British ships of war were em- 
 powered to seize the crews of all American vessels, and compel 
 them, under pain of being treated as mutineers, to serve against 
 their countrymen. 
 
 All these things contributed to sever the colonies from am- 
 icable connection with England, and to make the prospect of 
 reconciliation appear strange and remote. Separation, it was 
 plausibly said, was the act of the British Parliament itself, 
 which had thrown the thirteen colonies out of the protection 
 of the Crown. But another and more practical consideration 
 concurred with the foregoing in producing the Declaration of 
 Independence. One of the gravest of the questions which were 
 agitating the Revolutionary party was the expediency of asking 
 for foreign, and especially for French assistance. France had 
 hitherto been regarded in America, even more than in England, 
 as a natural enemy. She was a despotic Power, and could not 
 therefore, have much real sympathy with a struggle for con- 
 stitutional liberty. Her expulsion from America had been for 
 generations one of the first objects of American patriots ; and 
 if she again mixed in American affairs, it was natural that she 
 should seek to regain the province she had so lately lost. If 
 America was destined to be an independent Republic, nothing 
 could be more dangerous than to have a military and aggressive 
 colony belonging to the most powerful despotism in Europe 
 
200 DECLARATION OF INDEPENDENCE [Ch. XIV 
 
 planted on her frontiers. . . . The questions of a French 
 alliance and of a declaration of independence were thus indis- 
 solubly connected. In the autumn of 1775 a motion was made 
 in Cono-ress, and strongly supported by John Adams, to send 
 ambassadors to France. But Congress still shrank from so 
 formidable a step, though it agreed, after long debates and 
 hesitation, to form a secret committee ' to correspond with 
 friends in Great Britain, Ireland, and other parts of the 
 world.' 
 
 ... It belongs rather to the historian of America than to 
 the historian of England to recount in detail the various steps 
 that led immediately to the Declaration of Independence. . . . 
 John Adams was now the most powerful advocate, while John 
 Dickenson was the chief opponent of independence. At last, 
 however, it was resolved not to show any appearance of dis- 
 sension to the world. . . . Thomas Jefferson, of Virginia, 
 whose literary power had been shown in many able State 
 papers, had already drawn up the Declaration of Indepen- 
 dence, which, having been revised by Franklin and by John 
 Adams, was now submitted to the examination of Congress, 
 and was voted after some slight changes on the evening of the 
 4th. It proclaimed that a new nation had arisen in the world, 
 and that the political unity of the English race was for ever at 
 an end. 
 
 W. E. H. Lecky, England in the Eighteenth Century. III. 491-499. 
 
 ELLIS (1887) 
 
 Recalling the fact that in all previous remonstrances and 
 petitions, without a single exception, whether coming from a 
 convention, an assembly, or a congress, the ministry and Par- 
 liament were made to bear the burden of all complaints and 
 reproaches, we note with emphasis that in the Declaration of 
 Independence, for the first time, " the present king of Great 
 Britain " is charged the offender. Its scathing invectives in 
 its short sentences begin with " He." His tools and supporters 
 are all lost sight of, passed unmentioned. This substitution of 
 the monarch himself as chargeable, through his own persistency, 
 with the whole burden heretofore laid at the door of his advisers 
 indicates the necessity which Congress felt of seeming to sever 
 
1826-1899] CRITICAL COMMENT 201 
 
 their plain constitutional allegiance to the monarch, and of 
 ignoring all dependence on his ministers or Parliament, whose 
 supremacy over the colonies they had always denied. Hence 
 the tone and wording of all the previous utterances of Congress, 
 deferential and even fulsome as they now seem, in sparing the 
 king, for the first time, in the Declaration, are changed to give 
 the necessary legal emphasis of the capital letters in He. . . . 
 
 On the other side of the water, the Declaration, as " throw- 
 ing off the mask of hypocrisy " by the patriots, was a very 
 painful shock to many who had been most friendly and earnest 
 champions of the cause of the colonists. The members of the 
 opposition in Parliament and in high places were taunted by 
 the supporters of Government for all their pleading in behalf 
 of rebels. And when, besides the bold avowal of independence, 
 the added measures of a suspension of all commerce with Great 
 Britain, and an alliance of the patriots with the hereditary 
 enemy of their mother country, came to the knowledge of those 
 who had been our friends, the constei'nation which it caused 
 them was but natural. . . . What is there to be said, either by 
 way of explanation or of justification, of the course ascribed to 
 the patriots? It is well to admit freely that there was much 
 said, if not done, that had the seeming of duplicity and insin- 
 cerity, of secrecy of design and of sinuous dealing. And after 
 yielding all that can be charged of this, we may insist that, in 
 reality, it was nothing beyond the seeming. Neither disguise, 
 nor duplicity, nor hypocrisy, nor artful or cunning intrigue, 
 in any shape or degree, was availed of by the patriots. The 
 result to which they were led was from the first natural and 
 inevitable, and it was reached by bold and honest stages, in 
 thinking out and making sure of their way. The facts are all 
 clearly revealed to us in their course of development. The 
 maturing of opinion, till what had been repelled as a calamity 
 was accepted as a necessity, is traceable through the changing 
 events of a few heavily burdened years, if not even of months 
 and days, to say nothing of the symptoms of it which a keen 
 perception may discover during the career of four generations of 
 Englishmen on this continent. Its own natural stages of growth 
 were reached just at the time that it was attempted to bring it 
 under check by artificial restraint of the home government. 
 
202 DECLARATION OF INDEPENDENCE [Ch. XIV 
 
 That government compelled the colonists to ask themselves the 
 two questions : first, if they were anything less than English- 
 men ; and further, if their natural rights were any less than 
 those of men. 
 
 Geokge E. Ellis, in Winsor, Narrative and Critical History of America. 
 VI. 247. 
 
 FISKE (1896) 
 
 No one who is familiar with the essential features of Amer- 
 ican political life can for a moment suppose that the Declara- 
 tion of Independence was brought about by any less weighty 
 force than the settled conviction of the people that the priceless 
 treasure of self-government could be preserved by no other 
 means. It was but slowly that this unwelcome conviction grew 
 upon the people ; and owing to local differences of circumstances 
 it grew more slowly in some places than in others. Prescient 
 leaders, too, like the Adamses and Franklin and Lee, made 
 up their minds sooner than other people. Even those con- 
 servatives who resisted to the last, even such men as John 
 Dickinson and Robert Morris, were fully agreed with their op- 
 ponents as to the principle at issue between Great Britain and 
 America, and nothing would have satisfied them short of the 
 total abandonment by Great Britain of her pretensions to im- 
 pose taxes and revoke charters. Upon this fundamental point 
 there was very little difference of opinion in America. As to 
 the related question of independence, the decision, when once 
 reached, was everywhere alike the reasonable result of free and 
 open discussion ; and the best possible illustration of this is the 
 fact that not even in the darkest days of the war already begun 
 did any state deliberately propose to reconsider its action in 
 the matter. 
 
 John Fiskb, American Revolution. I. 196. 
 
 LODGE (1899) 
 
 The Declaration when published was read to the army under 
 Washington and received by the soldiers with content. It was 
 a satisfaction to them to have the reality for which they were 
 fighting put into words and officially declared. It was read 
 also formally and with some ceremony in public places, in all 
 
1826-1899] CRITICAL COMMENT 203 
 
 the chief towns of the colonies, and was received by the people 
 cordially and heartily, but without excitement. There was no 
 reason why it should have called forth much feeling, for it 
 mei'ely embodied public opinion already made up, and was ex- 
 pected by the loyalist minority. Yet despite its general accept- 
 ance, which showed its political strength, it was a great and 
 memorable document. From that day to this it has been 
 listened to with reverence by a people who have grown to be a 
 great nation, and equally from that day to this it has been the 
 subject of severe criticism. The reverence is right, the criti- 
 cism misplaced and founded on misunderstanding. 
 
 Henky Cabot Lodge, American Revolution. I. 499. 
 
204 THE ARTICLES OF CONFEDERATION [Ch. XV 
 
 Chapter XV 
 THE ARTICLES OF CONFEDERATION 
 
 SUGGESTIONS 
 
 From July 4th, 1776, the United States of America were governed 
 by a Continental or General Congress until March 1, 1781, when the 
 States adopted a constitution, called the '•'■ Articles of Confederation 
 and Perpetual Union between the States." The " Articles " had been 
 made by the States only : Congress continued to govern or pretended 
 to govern by these " Articles " until March 4th, 1789 : but in the 
 meanwhile the constitution had no given power to execute the laws or 
 to pass judgment upon the acts of the government. The document 
 is supposed to have been drafted by John Dickinson of Delaware, but 
 as the work of the committee was done in secret and has never been 
 reported the point cannot be determined. 
 
 The inadequacy of this frame of government proved to be most 
 unsatisfactory. Five years of construction, six years of struggling 
 existence, mark the life of the Articles, but they died only to give 
 birth to a greatly improved constitutional document. 
 
 For Outlines and Material, see Appendix A. 
 
 DOCUMENT 
 
 Articles of Confederation (1776-1778) 
 
 Nov. 15, 1777. —ARTICLES AGREED TO BY 
 CONGRESS 
 
 American A copy of the Confederation being made out 
 
 History g^^jj sundry amendments made in the diction with- 
 
 Leaflets JNo. . '' 
 
 20 (verified out altering the sense the same was agreed to & is 
 
 from original as follows : 
 
 manu- 
 
 July 9, 1778. — ARTICLES OF CONFEDERA- 
 JuF/stb! TION. (OFFICIAL ENGROSSED TEXT) 
 
 RaUfied' S:0ElIt0TO!)0m 
 
 March 1st these Presents shall come, we the undersigned Dele- 
 1781 
 
 gates of the States affixed to our Names send 
 
1776-1778] TEXT 205 
 
 greeting. Whereas the Delegates of the United 
 States of America in Congress assembled did on 
 the fifteenth day of November in the Year of Our 
 Lord One thousand seven Hundred and Seventy- 
 seven, and in the second Year of the Independence 
 of America agree to certain articles of Confedera- 
 tion and perpetual Union between the States of 
 Newhampshire, Massachusetts-bay, Ehodeisland 
 and Providence Plantations, Connecticut, New 
 York, New Jersey, Pennsylvania, Delaware, Mary- 
 land, Virginia, North-Carolina, South-Carolina, and 
 Georgia in the Words following, viz. " Akticles 
 OF CoKFEDERATiON and perpetual Union between 
 the States of Newhampshire, Massachusetts-bay, 
 Ehodeisland and Providence Plantations, Con- 
 necticut, New- York, New-Jersey, Pennsylvania, 
 Delaware, Maryland, Virginia, North-Carolina, 
 South-Carolina, and Georgia." 
 
 Article I. The Stile of this confederacy shall 
 be "The United States of America." 
 
 Article II. Each state retains its sovereignty, Idea of 
 freedom and independence, and every Power, Juris- statehood 
 diction and right, which is not by this confederation foremost, 
 expressly delegated to the United States, in Con- 
 gress assembled. 
 
 Article III. The said states hereby severally See Constitu- 
 enter into a firm league of friendship with each *1°^' , , 
 other, for their common defence, the security of 
 their Liberties, and their mutual and general wel- 
 fare, binding themselves to assist each other, 
 against all force offered to, or attacks made upon 
 them, or any of them, on account of religion, sov- 
 ereignty, trade, or any other iDretence whatever. 
 
 Article IV. The better to secure and perpetuate Notwith- 
 
 mutual friendship and intercourse among the people standing this 
 '- . . clause, vari- 
 
 of the different states m this union, the free m- ous states 
 
 habitants of each of these states, paupers, vaga- disagreed 
 
 bonds, and fugitives from Justice excepted, shall ^^^ iSTaviga- 
 
 be entitled to all privileges and immunities of free tion Laws. 
 
206 THE ARTICLES OF CONFEDERATION [Ch. XV 
 
 citizens in the several states ; and the people of 
 each state shall have free ingress and regress to 
 and from any other state, and shall enjoy therein 
 SeeConstitu- all the privileges of trade and commerce, subject 
 10*^?^'^^'^" ^ ^^ ^^^ same duties, impositions and restrictions as 
 the inhabitants thereof respectively, provided that 
 such restriction shall not extend so far as to pre- 
 vent the removal of property imported into any 
 state, to any other state of which the Owner is 
 an inhabitant ; provided also that no imposition, 
 duties or restriction shall be laid by any state, 
 on the property of the united states, or either of 
 them. 
 Constitution, If any Person be guilty of, or charged with 
 Art. iv. 2. (2) treason, felony, or other high misdemeanour in any 
 state, shall flee from Justice, and be found in any 
 of the united states, he shall upon demand of the 
 Governor or executive power, of the state from 
 which he fled, be delivered up and removed to the 
 state having jurisdiction of his offence. 
 Constitution, FuLL faith and credit shall be given in each of 
 Art. iv. 1 these states to the records, acts and judicial pro- 
 ceedings of the courts and magistrates of every 
 other state. 
 
 Since there Article V. For the more convenient manage- 
 was no sepa- „ , , . ^ , . ^ ^ 
 
 rate execu- nient of the general mterest of the united states, 
 
 tive or judi- delegates shall be annually appointed in such man- 
 
 gress'became ^®^ ^^ ^^® legislature of each state shall direct, to 
 
 the sole re- meet in Congress on the first Monday in November, 
 
 natiorS*^ in ever}^ year, with a power reserved to each state, 
 
 power. to recal its delegates, or any of them, at any time 
 
 See Con- within the year, and to send others in their stead, 
 
 Art. i. 1-7 foi' the remainder of the Year. 
 
 No state shall be represented in Congress by 
 
 Constitution jggg than two, nor by more than seven Members : 
 
 Art i. 2 T J ' 
 
 (1 2 3) ^^^ ^o person shall be capable of being a delegate 
 
 for more than three years in any term of six years ; 
 
 nor shall any person, being a delegate, be capable 
 
 of holding any office under the united states, for 
 
1776-1778] TEXT 207 
 
 which he, or another for his benefit, receives any 
 salary, fees or emolument of any kind. 
 
 Each state shall maintain its own delegates in a 
 meeting of the states, and while they act as mem- 
 bers of the committee of the states. 
 
 In determining questions in the united states, in 
 Congress assembled, each state shall have one vote. 
 
 Freedom of speech and debate in congress shall Constitution, 
 not be impeached or questioned in any Court, or ^^t- i- ^ 0) 
 place out of Congress, and the members of Con- 
 gress shall be protected in their persons from ar- 
 rests and imprisonments, during the time of their 
 going to and from, and attendance on congress, 
 except for treason, felony, or breach of the peace. 
 
 Article VI. No state without the Consent of Constitution, 
 the united states in congress assembled, shall send -^^^' ^- ^^• 
 any embassy to, or receive any embassy from, or 
 enter into any conference, agreement, alliance or 
 treaty with any King, prince, or state; nor shall 
 any person holding any office of profit or trust 
 under the united states, or any of them, accept of 
 any present, emolument, office or title of any kind 
 whatever from any king, prince, or foreign state ; 
 nor shall the united states in congress assembled, 
 or any of them, grant any title of nobility. 
 
 No two or more states shall enter into any treaty, iSTotwith- 
 confederation or alliance whatever between them, standing this 
 without the consent of the united states in congress compact was 
 assembled, specifying accurately the purpose for made be- 
 which the same is to be entered into and how long i^^j and^^^" 
 it shall continue. Virginia. 
 
 No state shall lay any imposts or duties, which This crippled 
 mav interfere with any stipulations in treaties, en- the treaty- 
 tered into by the united states in congress assem- power." 
 bled, with any king, prince, or state, in pursuance 
 of any treaties already proposed by congress, to 
 the courts of France and Spain. 
 
 No vessels of war shall be kept up in time of 
 peace by any state, except such number only, as 
 
208 THE ARTICLES OF CONFEDERATION [Ch. XV 
 
 Constitution, shall be deemed necessary by the united states in 
 Art. I. 10 congress assembled, for the defence of such state, 
 or its trade ; nor shall any body of forces be kept 
 up by any state, in time of peace, except such 
 number only, as in the judgment of the united 
 states, in congress assembled, shall be deemed 
 requisite to garrison the forts necessary for the 
 defence of such state ; but every state shall always 
 keep up a well regulated and disciplined militia, 
 sufficiently armed and accoutred, and shall provide 
 and constantly have ready for use, in public stores, 
 a due number of field pieces and tents, and a proper 
 quantity of arms, ammunition and camp equipage. 
 
 No state shall engage in any war without the 
 consent of the united states in congress assembled, 
 Notwith- unless such state be actually invaded by enemies, 
 clause^eor-^ ^^ shall have received certain advice of a resolution 
 gia made war being formed by some nation of Indians to invade 
 ^^th*r^^*^ such state, and the danger is so imminent as not 
 Indians. to admit of a delay, till the united states in con- 
 
 gress assembled can be consulted : nor shall any 
 state grant commissions to any ships or vessels of 
 war, nor letters of marque or reprisal, except it be 
 after a declaration of war by the united states in 
 congress assembled, and then only against the 
 kingdom or state and the subjects thereof, against 
 which war has been so declared, and under such reg- 
 ulations as shall be established by the united states 
 in congress assembled, unless such state be infested 
 by pirates, in which case vessels of war may be 
 fitted out for that occasion, and kept so long as 
 the danger shall continue, or until the united states 
 in congress assembled shall determine otherwise. 
 
 Article VII. When land-forces are raised by 
 any state for the common defence, all officers of 
 or under the rank of colonel, shall be appointed 
 by the legislature of each state respectively by 
 whom such forces shall be raised, or in such man- 
 ner as such state shall direct, and all vacancies 
 
1776-1778] TEXT ■ 209 
 
 shall be filled up by the state which first made the 
 
 appointment. 
 
 Article VIII. All charges of war, and all other The system 
 
 expences that shall be incurred for the common ^f requisi- 
 ^ 1. II,- T 11 1 1 1 tions on the 
 
 defence or general welfare, and allowed by the states proved 
 
 united states in congress assembled, shall be de- totally inade- 
 
 frayed out of a common treasury, which shall be jg^j i^ con- 
 
 supplied by the several states, in proportion to the stant fric- 
 
 value of all land within each state, granted to or ^^are taxation 
 
 surveyed for any Person, as such land and the clause here 
 
 buildings and improvements thereon shall be esti- 'J^\*^ Consti- 
 T -,. , , , . -, tution, Art. 
 
 mated accordmg to such mode as the united states j. g (1) 
 
 in congress assembled, shall, from time to time, 
 direct and appoint. The taxes for paying that 
 proportion shall be laid and levied by the authority 
 and direction of the legislatures of the several states 
 within the time agreed upon by the united states in 
 congress assembled. 
 
 Article IX. The united states in congress as- increase of 
 
 sembled, shall have the sole and exclusive right and power in _ 
 
 ~ . . . . -, . . Congress m 
 
 power of determmmg on peace and war, except in Constitution 
 
 the cases mentioned in the sixth article — of sending Art. i. 8 (11- 
 
 18) 
 and receiving ambassadors — entering into treaties '' 
 
 and alliances, provided that no treaty of commerce 
 shall be made whereby the legislative power of the 
 respective states shall be restrained from imposing 
 such imposts and duties on foreigners, as their own 
 people are subjected to, or from prohibiting the 
 exportation or importation of any species of goods 
 or commodities whatsoever — of establishing rules 
 for deciding in all cases, what captures on laud or 
 water shall be legal, and in what manner prizes 
 taken by land or naval forces in the service of the 
 united states shall be divided or appropriated — of 
 granting letters of marque and reprisal in times of 
 peace — appointing courts for the trial of piracies 
 and felonies committed on the high seas and estab- 
 lishing courts for receiving and determining finally 
 appeals in all cases of captures, provided that no 
 
 14 
 
210 THE ARTICLES OF CONFEDERATION [Ch. XV 
 
 member of congress shall be appointed a judge of 
 any of the said courts. 
 Constitution The united states in congress assembled shall 
 Art. iii. c^^qo be the last resort on appeal in all disputes and 
 
 differences now subsisting or that hereafter may 
 Tliis was a arise between two or more states concerning bound- 
 clumsy ary, jurisdiction or any other cause whatever ; which 
 was u*se(f but authority shall always be exercised in the manner 
 once. following. "Whenever the legislative or executive 
 authority or lawful agent of any state in controversy 
 with another shall present a petition to congress, 
 stating the matter in question and praying for a 
 hearing, notice thereof shall be given by order of 
 congress to the legislative or executive authority of 
 the other state in controversy, and a day assigned 
 for the appearance of the parties by their lawful 
 agents, who shall then be directed to appoint by 
 joint consent, commissioners or judges to constitute 
 a court for hearing and determining the matter in 
 question: but if they cannot agree, cougz-ess shall 
 name three persons out of each of the united states, 
 and from the list of such persons each party shall 
 alternately strike out one, the petitioners beginning, 
 until the number shall be reduced to thirteen ; and 
 from that number not less than seven, nor more 
 than nine names as congress shall direct, shall in 
 the presence of congress be drawn out by lot, and 
 the persons whose names shall be so drawn or any 
 five of them, shall be commissioners or judges, to 
 hear and finally determine the controversy, so always 
 as a major part of the judges who shall hear the 
 cause shall agree in the determination : and if either 
 party shall neglect to attend at the day appointed, 
 without shewing reasons, which congress shall judge 
 sufficient, or being present shall refuse to strike, the 
 congress shall proceed to nominate three persons out 
 of each state, and the secretary of congress shall 
 strike in behalf of such party absent or refusing ; 
 and the judgment and sentence of the court to be 
 
1776-1778] TEXT 211 
 
 appointed, in the manner before prescribed, shall 
 be final and conclusive ; and if any of the parties 
 shall refuse to submit to the authority of such court, 
 or to appear or defend their claim or cause, the 
 court shall nevertheless proceed to pronounce sen- 
 tence, or judgment, which shall in like manner be 
 final and decisive, the judgment or sentence and 
 other proceedings being in either case transmitted 
 to congress, and lodged among the acts of congress 
 for the security of the parties concerned : provided 
 that every commissioner, before he sits in judgment, 
 shall take an oath to be administered by one of the 
 judges of the supreme or superior court of the state, 
 whei-e the cause shall be tried, ' ' well and truly to 
 hear and determine the matter in question, accord- 
 ing to the best of his judgment, without favour, 
 affection or hope of reward : " provided also that no 
 state shall be deprived of territory for the benefit 
 of the united states. 
 
 All controversies concerning the private right of Wyoming 
 soil claimed under different grants of two or more ^Q^^^fg 
 states, whose jurisdictions as they may respect such 
 lands, and the states which passed such grants are 
 adjusted, the said grants or either of them being at 
 the same time claimed to have originated antecedent 
 to such settlement of jurisdiction, shall on the peti- 
 tion of either party to the congress of the united 
 states, be finally determined as near asmaybe in the 
 same manner as is before prescribed for deciding 
 disputes respecting territorial jurisdiction between 
 different states. 
 
 The united states in congress assembled shall Paper money 
 also have the sole and exclusive right and power of ~ Tender 
 regulating the alloy and value of coin struck by Acts,'shays's 
 their own authority, or by that of the respective Rebellion, 
 states — fixing the standard of weights and meas- 
 ures throughout the United States — regulating the 
 trade and manageing all affairs with the Indians, not 
 members of any of the states, provided that the 
 
212 THE ARTICLES OF CONFEDERATION [Ch. XV 
 
 legislative right of any state within its own limits 
 be not infringed or violated — establishing and 
 regulating post-offices from one state to another, 
 throughout all the united states, and exacting such 
 postage on the papers passing thro' the same as 
 may be requisite to defray the expences of the said 
 office — appointing all officers of the land forces, in 
 the service of the united states, excepting regimen- 
 tal officers — appointing all the officers of the naval 
 forces, and commissioning all officers whatever in 
 the service of the united states — making rules for 
 the government and regulation of the said land and 
 naval forces, and directing their operations. 
 This Com- The united states in congress assembled shall 
 
 mittee of the j-j^^g authority to appoint a committee, to sit in the 
 
 OtRteS W3iS ci ^ ^ -\ ' ~t k /-A 
 
 failure. recess of congress, to be denommated " A Committee 
 
 of the States," and to consist of one delegate from 
 each state ; and to appoint such other committees 
 and civil officers as may be necessary for manage- 
 ing the general affairs of the united states under 
 their direction — to appoint one of their number to 
 preside, provided that no person be allowed to serve 
 in the office of president more than one year in any 
 term of three years ; to ascertain the necessary 
 sums of Money to be raised for the service of the 
 united states, and to appropriate and apply the 
 same for defraying the public expences — to borrow 
 money, or emit bills on the credit of the united 
 states, transmitting every half year to the respec- 
 tive states an account of the sums of money so bor- 
 rowed or emitted, — to build and equip a navy — ■ 
 to agree iipon the number of land forces, and to 
 make requisitions from each state for its quota, in 
 proportion to the number of white inhabitants in 
 such state ; which requisition shall be binding, and 
 thereupon the legislature of each state shall appoint 
 the regimental officers, raise the men and cloath, 
 arm and equip them in a soldier like manner, at the 
 
1776-1778] TEXT 213 
 
 expence of the united states ; and the officers and 
 
 men so cloathed, armed and equipped shall march 
 
 to the place appointed, and within the time agreed 
 
 on by the united states in congress assembled : But Seditious 
 
 if the united states in congress assembled shall, on outbreaks 
 
 . , . ^ . T follow 
 
 consideration of circumstances judge proper that (Rhode 
 
 any state should not raise men, or should raise a Island in 
 smaller number than its quota, and that any other 
 state should raise a greater number of men than the 
 quota thereof, such extra number shall be raised, 
 officered, cloathed, armed and equipped in the same 
 manner as the quota of such state, unless the legis- 
 lature of such state shall judge that such extra 
 number cannot be safely spared out of the same, 
 in which case they shall raise officer, cloath, arm 
 and equip as many of such extra number as they 
 judge can be safely spared. And the officers and 
 men so cloathed, armed and equipped, shall march 
 to the place appointed, and within the time agreed 
 on by the united states in congress assembled. 
 
 The united states in congress assembled shall The nine 
 
 never engage in a war, nor grant letters of marque ^tates rule 
 
 , ° ° . , . ' '' ... (practically 
 
 and reprisal in time of peace, nor enter into any requirino- a 
 
 treaties or alliances, nor coin money, nor regulate two-thirds 
 
 the value thereof, nor ascertain the sums and ex- ^jjg states) 
 
 pences necessary for the defence and welfare of the was a serious 
 
 united states, or any of them, nor emit bills, nor n°e^ied 
 
 borrow money on the credit of the united states, legislation. 
 
 nor appropriate money, nor agree upon the number 
 
 of vessels of war, to be built or purchased, or the 
 
 number of land or sea forces to be raised, nor 
 
 appoint a commander-in-chief of the army or navy, 
 
 unless nine states assent to the same : nor shall a 
 
 question on any other point, except for adjourning 
 
 from day to day be determined, unless by the 
 
 votes of a majority of the united states in congress 
 
 assembled. 
 
 The congress of the united states shall have 
 
214 THE ARTICLES OF CONFEDERATION [Ch. XV 
 
 power to adjourn to any time within the year, 
 and to any place within the united states, so that 
 no period of adjournment be for a longer duration 
 than the space of six months, and shall publish the 
 Journal of their proceedings monthly, except such 
 parts thereof relating to treaties, alliances or mili- 
 tary operations, as in their judgment require se- 
 crecy ; and the yeas and nays of the delegates of 
 each state on any question shall be entered on the 
 Journal, when it is desired by any delegate ; and 
 the delegates of a state, or any of them, at his or 
 their request shall be furnished with a transcript of 
 the said Journal, except such parts as are above 
 excepted, to lay before the legislatures of the 
 several states. 
 
 Article X. The committee of the states, or 
 any nine of them, shall be authorized to execute, in 
 the recess of congress, such of the powers of con- 
 gress as the united states in congress assembled, by 
 the consent of nine states, shall from time to time 
 think expedient to vest them with ; provided that 
 no power be delegated to the said committee, for 
 the exercise of which, by the articles of confedera- 
 tion, the voice of nine states in the congress of the 
 united states assembled is requisite. 
 
 Article XI. Canada acceding to this confeder- 
 ation, and joining in the measures of the united 
 states, shall be admitted into, and entitled to all 
 the advantages of this union : but no other colony 
 shall be admitted into the same, unless such ad- 
 mission be agreed to by nine states. 
 
 As the Unit- Article XII. All bills of credit emitted, monies 
 
 ed States borrowed and debts contracted by, or under the 
 
 tiad no inde- '' 
 
 pendent tax- authority of congress, before the assembling of the 
 
 ing powers, united states, in pursuance of the present confedera- 
 was of very tion, shall be deemed and considered as a charge 
 
1776-1778] TEXT 215 
 
 against the united states, for payment and satisfac- little ac- 
 tion whereof the said united states, and the public 
 faith are hereby solemnly pledged. 
 
 Article XIII. Every state shall abide by the This clause 
 
 determinations of the united states in congress ^^ntlv^' 
 
 assembled, on all questions which by this confedera- broken for 
 
 tion are submitted to them. And the Articles of l^ck of judi- 
 cial de]3art- 
 this confederation shall be inviolably observed by ment to en- 
 
 every state, and the union shall be perpetual ; nor force it. 
 
 shall any alteration at any time hereafter be made 
 
 in any of them ; unless such alteration be agreed to 
 
 in a congress of the united states, and be afterwards 
 
 confirmed by the legislatures of every state. 
 
 '^Inti IJlEf)Erea0 it hath pleased the Great Gover- 
 nor of the World to incline the hearts of the legis- 
 latures we respectively represent in congress, to 
 approve of, and to authorize us to ratify the said 
 articles of confederation and perpetual union, knoto 
 ge that we the undersigned delegates, by virtue of 
 the power and authority to us given for that pur- 
 pose, do by these presents, in the name and in 
 behalf of our respective constituents, fully and 
 entirely ratify and confirm each and every of the 
 said articles of confederation and perpetual union, 
 and all and singular the matters and things therein 
 contained : And we do further solemnly plight and 
 engage the faith of our respective constituents, that 
 they shall abide by the determinations of the united 
 states in congress assembled, on all questions, 
 which by the said confederation are submitted to 
 them. And that the articles thereof shall be in- 
 violably observed by the states we respectively 
 represent, and that the union shall be perpetual. 
 In witness whereof we have hereunto set our hands 
 in Congress. Done at Philadelphia in the state of 
 Pennsylvania the ninth Day of July in the Year of 
 our Lord one Thousand seven Hundred and Seventy 
 
216 
 
 THE ARTICLES OF CONFEDERATION [Ch. XV 
 
 eight, and in the third year of the independence of 
 America. 
 
 On the part & 
 behalf of the 
 State of Dela- 
 ware 
 
 on the part and 
 behalf of the 
 State of Mary- 
 land 
 
 On the Part and 
 Behalf of the 
 State of Vir- 
 ghiia 
 
 on the part and 
 Behalf of the 
 State of No. 
 Carolina 
 
 On the paxt and 
 behalf of the 
 State of South- 
 Carolina 
 
 On the part and 
 behalf of the 
 State of Geor- 
 gia 
 
 Thos M: Kean 
 
 Feb 12. 1779 
 John Dickinson, 
 
 May 5th 1779 
 Nicholas Van 
 
 Dyke, 
 John Hanson 
 
 Ma,rch 1st 1781 
 Daniel Carroll. 
 
 do. 
 Richard Henry 
 
 Lee 
 John Bannister 
 Thomas Adams 
 Jno Harvle 
 Francis Light- 
 foot Lee 
 John Penn July 
 
 21st 1778 
 
 Corns Harnett 
 
 Jno. Williams 
 
 ' Henry Laurens. 
 
 William Henry 
 
 Drayton 
 Jno. Mathews 
 Richd Hudson 
 Thos. Heyward 
 
 Junr. 
 Jno Walton 24th 
 
 July 1778 
 Edwd. Telfair. 
 E d w d. L a n g- 
 
 worthy. 
 
 Josiah Bartlett, 
 John Wentworth 
 
 Junr august 
 
 8th 1778 
 John Hancock. 
 Samuel Adams 
 Elbridge Gerry. 
 Frances Dana 
 James Lovell 
 Samuel Holten. 
 
 William EUery 
 Henry Marchant 
 John Collins 
 
 Roger Sherman, 
 Samuel Huntmg- 
 
 ton 
 Oliver Wolcott 
 Titus Hosmer 
 Andrew Stearns 
 Jas. Duane. 
 Fras. Lewis 
 Wm Duer. 
 Gouv. Morris, 
 
 Jno Witherspoon 
 Nath. Scudder 
 
 Robt Morris. 
 Daniel Rober- 
 
 deau 
 Jon. Bayard 
 
 Smith 
 William Clingan 
 Joseph Reed. 
 
 22d July 1778 
 
 on the part & 
 behalf of the 
 State of New 
 Hampshire 
 
 on the part and 
 behalf of the 
 State of Massa- 
 chusetts Bay 
 
 On the part and 
 behalf of the 
 State of Rhode- 
 Island and 
 Providence 
 Plantations 
 
 on the Part and 
 behalf of the 
 State of Con- 
 necticut 
 
 On the Part and 
 Behalf of the 
 State of New 
 York 
 
 On the Part and 
 in Behalf of 
 the State of 
 New Jersey. 
 Novr. 26. 1778 
 
 On the part and 
 behalf of the 
 State of Penn- 
 sylvania 
 
 CONTEMPORARY EXPOSITION 
 
 PELATIAH WEBSTER (1784) 
 
 The articles of our federal union were drawn up by Con- 
 gress, and adopted by the states, amidst the confusions of a 
 most bloody, cruel, and unnatural war, when the attention of 
 Congress who drew, and the states who adopted them, was 
 frequently drawn off by continual alarms, burning of towns, 
 slaughter, and bloodshed. No marvel then that every incon- 
 viency attending them when reduced into practice, could not be 
 foreseen, either by those who drew, or those who adopted 
 them ; at which period, it would not have been well accepted, 
 had any one discovered, and had ventured to call into ques- 
 
1778-1784] CONTEMPORARY EXPOSITION 217 
 
 tion, the propriety of any one of the thirteen articles of our 
 confederation. 
 
 It may therefore be advisable, now that we are released of 
 the distressing scenes of war, deliberately to examine, revise, 
 correct and amend them, in every instance, in which when 
 reduced into practice, they may be found — inconsistent with 
 each other — not capable of being carried into execution — or 
 inconsistent with the general sense and understanding of those 
 who adopted them. . . . 
 
 The true end and design of our confederation I take to be this, 
 viz. To unite the strength of the separate states under Con- 
 gress as their general Head, and to delegate to them the 
 direction of the operations of our military and naval forces 
 against the power of Great Britain. . . . And this I take it 
 was the general sense and understanding of the states who 
 adopted the articles of our federal union, and the whole tenor 
 of the articles themselves support this opinion. . . . Congress 
 are to determine the number of troops necessary for the ser- 
 vice of the states, . . . What service? The service of the war 
 and general defence . . . and for that end they were to make 
 requisition to each state for their quota, " and to ascertain the 
 necessary sums of money to be raised for the service " of the 
 war, and to appropriate and apply the same ; that matter not 
 being compatible to any particular state, by constitution is 
 vested in congress, whose right it properly is, and is expressly 
 delegated to them. . . . 
 
 The form of government planned by Congress, and adopted 
 by the states, is the only form we could adopt under our 
 circumstances: And the honor and dignity of Congress, as a 
 private citizen, I am determined to support, as much as the 
 sovereignty, freedom, and independence of the states, and 
 every power, jurisdiction and right, which they have not ex- 
 pressly delegated to Congress. But as every deviation from 
 the articles of our federal union makes a dangerous precedent 
 in future, the defects in the articles of confederation can be 
 known only by practice : And it is time enough to make 
 alterations in our system of government, when the defects are 
 made evident. 
 
 Pelatiah Wkbster, Remarks On a Pamphlet. 11, 24, 39. 
 
218 THE ARTICLES OF CONFEDERATION [Ch. XV 
 
 "WASHINGTON (1786-1787) 
 
 To Henry Lee, in Congress. 
 
 Mt. Vernon, 31 October, 1786. 
 
 My Dear Sir, . . . Influence is no government. Let us have 
 one by which our lives, liberties, and properties will be secured, 
 or let us know the worst at once. Under these impressions, 
 my humble opinion is, that there is a call for decision. . . . 
 Let the reins of government then be braced and held with a 
 steady hand, and every violation of the constitution be repre- 
 hended. If defective, let it be amended, but not suffered to be 
 trampled upon whilst it has an existence. . . . 
 
 To John Gay. 10 March 1787. 
 
 Dear Sir, . . . How far the revision of the federal system, 
 and giving more adequate powers to congress may be productive 
 of an efficient government, I will not under my present view 
 of the nature, presume to decide. . . . Among men of reflec- 
 tion, few will be found I believe, who are not beginning to 
 think that our system is more perfect in theory than in prac- 
 tice ; and that notwithstanding the boasted virtue of America 
 it is more probable we shall exhibit the best melancholy proof, 
 that mankind are competent to their own government without 
 the means of coercion in the sovereign. . . . 
 
 To James Madison, in Congress. 
 
 31 March, 1787. 
 
 My Dear Sir, . . . That a thorough reform of the present 
 system is indispensable, none, who have capacities to judge, 
 will deny ; and with hand [and heart] I hope the business will 
 be essayed in a full convention. After which, if more powers 
 and more decision is not found in the existing form, if it still 
 wants energy and that secrecy and despatch . . . which is char- 
 acteristic of good government, and if it shall be found, . . . 
 that Congress will, upon all proper occasions, exert the powers 
 which are given, with a firm and steady hand, instead of fritter- 
 ing them back to the States, where the members, in place of 
 viewing themselves in their national character, are too apt to 
 be looking, — I say, after this essay is made, if the system 
 
1786-1821] CONTEMPORARY EXPOSITION 219 
 
 proves inefficient, conviction of the necessity of a change will 
 be disseminated among all classes of the people. Then, and 
 not till then, in my opinion, can it be attempted without 
 involving all the evils of civil discord. . . . 
 
 Geokge Washington, Works. II. 76-133. 
 
 HAMILTON (1780) 
 
 But the Confederation itself is defective, and requires to be 
 altered. It is neither fit for war nor peace. The idea of an 
 uncontrollable sovereignty in each State over its internal police 
 will defeat the other powers given to Congress, and make our 
 union feeble and precarious. There are instances without num- 
 ber where acts, necessary for the general good, and which rise 
 out of the powers given to Congress, must interfere with the 
 internal police of the States ; and there are as many instances 
 in which the particular States by arrangements of internal 
 police, can effectually, though indirectly, counteract the ar- 
 rangements of Congress. You have already had examples of 
 this, for which I refer you to your own memory. 
 
 The Confederation gives the States, individually, too much 
 influence in the affairs of the army. They should have nothing 
 to do with it. The entire formation and disposal of our mili- 
 tary forces ought to belong to Congress. It is an essential 
 cement of the union ; and it ought to be the policy of Congress 
 to destroy all ideas of State attachments in the army, and make 
 it look up wholly to them. For this purpose all appointments, 
 promotions, and provisions, whatsoever, ought to be made by 
 them. It may be apprehended that this may be dangerous to 
 liberty. But nothing appears more evident to me than that we 
 run much greater risk of having a weak and disunited federal 
 government, than one which will be able to usurp upon the 
 rights of the people. 
 
 Alexander Hamilton, Works. I. 205. 
 
 JEFFERSON (1821) 
 
 Our first essay, in America, to establish a federative govern- 
 ment had fallen, on trial, very short of its object. During the 
 war of Independence, while the pressure of an external enemy 
 hooped us together, and their enterprises kept us necessarily 
 
220 THE ARTICLES OF CONFEDERATION [Ch. XV 
 
 on the alert, the spirit of the people, excited by danger, was a 
 supplement to the Confederation, and urged them to zealous 
 exertions, whether claimed by that instrument or not ; but, 
 when peace and safety were restored, and every man became 
 engaged in useful and profitable occupation, less attention was 
 paid to the calls of Congress. The fundamental defect of the 
 Confederation was, that Congress was not authorized to act 
 immediately on the people, and by its own officers. Their 
 power was only requisitory, and these requisitions were ad- 
 dressed to the several Legislatures, to be by them carried into 
 execution, without other coercion than the moral principle of 
 duty. This allowed, in fact, a negative to every Legislature, 
 on every measure pi'oposed by Congress; a negative so fre- 
 quently exercised in practice, as to benumb the action of the 
 Federal government, and to render it inefficient in its general 
 objects, and more especially in pecuniary and foreign concerns. 
 The want, too, of a separation of the Legislative, Executive, 
 and Judiciary functions, worked disadvantageously in practice. 
 Yet this state of things afforded a happy augury of the future 
 march of our Confederacy, when it was seen that the good sense 
 and good dispositions of the people, as soon as they perceived 
 the incompetence of their first compact, instead of leaving its 
 correction to insurrection and civil war, agreed, with one voice, 
 to elect deputies to a general Convention, who should peace- 
 ably meet and agree on such a Constitution as "would ensure 
 peace, justice, liberty, the common defence and general welfare." 
 
 Thomas Jefferson, Works. I. 78. 
 
 CRITICAL COMMENT 
 
 STORY (1833) 
 
 The last defect which seems worthy of enumeration, is, that 
 the confederation never had a ratification of the People. Upon 
 this objection, it will be sufficient to quote a single passage 
 from the Federalist, as it affords a very striking commen- 
 tary upon some extraordinary doctrines recently promulgated. 
 ' ' Resting on no better foundation than the consent of the state 
 legislatures, it [the confederation] has been exposed to frequent 
 and intricate questions concerning the validity of its powers ; 
 
1821-1870] CRITICAL COMMENT 221 
 
 and has, in some instances, given birth to the enormous doctrine 
 of a right of legislative repeal. Owing its ratification to a law 
 of a state, it has been contended, that the same authority might 
 repeal the law, by which it was ratified. However gross a 
 heresy it may be to maintain, that a party to a compact has a 
 right to revoke that compact, the doctrine itself has had re- 
 spectable advocates. The possibility of a question of this 
 nature proves the necessity of laying the foundations of our 
 national government deeper, than in the mere sanction of dele- 
 gated authority. The fabric of American empire ought to rest 
 on the solid basis of the consent of the jjeople. The streams of 
 national power ought to flow immediately from that pure, 
 original fountain of all legitimate authority." 
 Joseph Story, Commentaries on the Constitution of the United States. 103. 
 
 J. A. JAMESON (1866) 
 
 The Constitution of the Confederation, therefore, when rati- 
 fied in the manner explained, was an entirely legitimate one ; 
 that is, it was proposed to the constituent bodies to be governed 
 by it, and by the latter ratified and confirmed by an express 
 vote ; but it was legitimate only for what it purported to be — a 
 league between States, and not a national Constitution, in the 
 proper sense of the word. Tested by the principles that 
 should preside over the foi-mation of a Constitutioyi, it was, in its 
 inception, not legitimate, for it wanted the sauction of the 
 people, who, as distinct from their governments, are alone the 
 constituents, or have power to ratify the Constitution. . . . 
 Such was the first essay of our fathers in framing a govern- 
 ment for United America. The system resulting from it, the 
 joint product of inexperience and State jealousy, came soon to 
 merit the general contempt from its weakness. . . . 
 
 There is scarcely a function of a good government in which 
 it would not have proved itself altogether wanting. 
 
 John A. Jameson, Treatise on Constitutional Conventions, 147-148. 
 MULFORD (1870) 
 
 The Declaration of Independence was the act of the whole 
 people ; it calls the Americans one people, and its salutation is 
 
222 THE ARTICLES OF CONFEDERAITON [Ch. XV 
 
 to them as fellow citizens. There is in it the assumption of no 
 separate rights, and the record of no separate wrongs. The 
 Declaration in its conception transcends the spirit of any of 
 these separate communities, and was beyond their separate 
 grasp. It was by the whole people that the war was carried 
 on, and victory was won, and peace w^as established for the 
 people. There was in these events beyond argument the evi- 
 dence of the divine guidance of the people. 
 
 . . . The subsequent circumstance of the deepest significance 
 is that the people sought to realize its purpose under the articles 
 of a confederation. It was the assumption of a confederate 
 principle, although in the nature of things it induced inevitable 
 contradictions ; thus, while the separate States are represented 
 as sovereign, they are not so in reality, but the attributes of 
 political sovereignty are withdrawn from them ; then also the 
 articles are called the Articles of Confederation, but they are 
 also described as articles of perpetual union; the acts which 
 were then performed under the articles were incongruous with 
 a confederate conception, and thus the Congress of the people 
 proceeded to enact laws as if invested with positive powers, 
 and thus the great seal of the United States with its legend of 
 unity was adopted; and treaties were confirmed by the Con- 
 gress, in which the nation was bound by obligations to other 
 nations, and the whole people was held by them ; under these 
 articles also, — so far was the condition removed from an act- 
 ual sovereignty in the separate communities, — in the highest 
 issues, and those which involved the very being of the people, 
 the ultimate determination was with nine of the thirteen com- 
 munities, and this formal political action was imperative over 
 the whole. But the fact of the most enduring import is that 
 these articles of confederation had no continuance; but after 
 a very brief period of confusion and disaster they fell away, 
 partly through their inherent weakness, and partly because they 
 did not correspond to the real constitution, and could not em- 
 body the real spirit and purpose of the people. 
 
 Elisha Mulford, The Nation. 331-333. 
 
1870-1875] CRITICAL COMMENT 223 
 
 VON HOLST (1875) 
 
 On the fourth of July, the Declaration of Independence was 
 adopted, the import of which, as has been already remarked, 
 was in accordance with the resolution of the 10th of June, 
 Eight days later, on the 12th of July, the last-named committee 
 submitted to congress the draft of the articles of confederation. 
 On the 15th of November, 1777, the articles, after they had 
 undergone several amendments, were accepted by congress, 
 and it was resolved to recommend them to the legislatures of 
 the states for adoption, 
 
 . . . The articles of confederation start out with the as- 
 sumption that from the date of the Declaration of Independence 
 each state became de facto and de jure an independent state, 
 competent henceforth to form a confederacy with the other 
 states whenever it saw fit, and to the extent that it saw fit. 
 How this assumption was to be reconciled with the fact that the 
 congress had been in existence for years, and had actually ex- 
 ercised sovereign power from the first, while the individual 
 states had assumed no sovereign attitude, theoretically or prac- 
 tically, toward England or other foreign countries, does not 
 appear. 
 
 , , . The changes effected by the articles of confederation 
 were rather of a negative than of a positive nature. They did 
 not give the state which was just coming into being a definite 
 form, but they began the work of its dissolution. The essen- 
 tial prerogatives which necessarily belong to a political com- 
 munity in its relations with other powers, they confided by law 
 to confederate authorities, from whom, in practice, they with- 
 held all power. On the other hand, they confided all actual 
 power to the component parts of the whole, but did not and 
 could not for themselves, still less for the whole, give them the 
 right to assume the responsibilities or enforce the rights which 
 regulate the relations of sovereign states. 
 
 The practical result of this was that the United States tended 
 more and more to split up into thirteen independent republics, 
 and in the same measure, they virtually ceased to be a member 
 of the family of nations bound together by the jus gentium. 
 The European powers rightly saw in the Union only a shadow 
 
224 THE ARTICLES OF CONFEDERATION [Ch. XV 
 
 without substance, and besides the}^ had no occasion and no 
 desire to have any relations with the individual states as sove- 
 reign bodies. 
 
 Dr. H. Von Holst, Constitutional' Hlstorij of the United States. I. 20-24. 
 
 HART (1891) 
 
 The Continental Congress took upon itself the management 
 of the military, financial, and foreign affairs of the thirteen 
 colonies which united in the movement. A year later it took 
 the logical step of proclaiming to the world the fact which had 
 for months been existent — the independence of the colonies 
 from Great Britain. In all these acts the colonies and the 
 people acquiesced. An informal but effective confederation 
 was thus formed. 
 
 During the five years following acquiescence was not always 
 obtained, and the Congress went through the humiliations of a 
 body unknown to constitutional law, and inadequately supplied 
 with strength. But practically it was a true, though tempo- 
 rary government: it made treaties, issued legal tender notes, 
 borrowed money, commissioned generals, directed campaigns. 
 The practical and the legal inception of the Union is to be 
 found in the acceptance by the people of the work of a body 
 without a legal warrant, but nevertheless actually the govern- 
 ment of all the thirteen States. 
 
 . . . The government thus established was a Staatenbund: 
 to us it seems weak ; when founded it was bound by the 
 strongest federal ties then known. The Congress was a weak 
 organ with all the functions of government ; but it was in 
 every way superior to the Swiss Diet, and, except in financial 
 powers, to the States General of the Netherlands. The powers 
 of government were few and feebly sustained ; but they were 
 larger than those of the Holy Roman Empire. The nation 
 found a Congress in existence, and as a Congress it was con- 
 tinued. The powers committed to it were, in the main, such as 
 had previously been exercised by the Continental Congress, and 
 such as the colonies had been accustomed to see carried on for 
 them by the British Home Government. Even in its defects, 
 the Confederation closely resembled its predecessor, the Con- 
 tinental Congress ; it was a clumsy contrivance, so far as ex- 
 
1891-1894J CRITICAL COMMENT 225 
 
 ecutive and judicial matters were concerned ; and it had no 
 direct relations with individuals. 
 
 Albert Bushnell Hart, Federal Government, 54-56. 
 
 HENRY JONES FORD (1898) 
 
 The period of the Confederation was one in which the func- 
 tions of general government were in abeyance. . . . People 
 cared nothing about the principles on which the government of 
 the Confederation was based, because they cared nothing for 
 that government. The Congress of the Confederation, al- 
 though it remained in existence fourteen years, never took root 
 in the affection or respect of the people. Its sittings were pri- 
 vate, and its proceedings made no appeal to public opinion. 
 
 Henrt Jones Ford, Rise and Growth of American Politics, 36, 37. 
 
 STEVENS (1894) 
 
 On the very day that saw the Declaration put forth, steps 
 were taken which led to the adoption, in the following year, of 
 "Articles of Confederation and Perpetual Union," binding all 
 the States in a " firm league of friendship with each other." 
 This earliest attempt at the construction of a national gov- 
 ernment established what, as the sequel proved, was neither 
 national nor a government. . . . Not to trace its disastrous 
 history in detail, enough to say, that its incompetency for all 
 purposes for which it was established, brought about, after ten 
 years of failui-e, its utter breakdown. 
 
 C. E. Stevens, Sources of the Constitution of the United States. 40. 
 
 FISKE (1894) 
 
 John Dickinson is supposed to have been the principal author 
 of the articles of confederation : but as the work of the com- 
 mittee was done in secret and has never been reported, the 
 point cannot be determined. . . . According to the language 
 of the articles, the states entered into a firm league of friend- 
 ship with each other ; and in order to secure and perpetuate 
 such friendship, the freemen of each state were entitled to all 
 the privileges and immunities of freemen in all the other states. 
 Mutual extradition of criminals was established, and in each 
 state full faith and credit was to be given to the records, acts, 
 
 15 
 
226 THE ARTICLES OF CONFEDERATION [Ch. XV 
 
 and judicial proceedings of every other state. This universal 
 intercitizeuship was what gave reality to the nascent and feeble 
 union. In all common business relations of life, the man of 
 New Hampshire could deal with the man of Georgia on an 
 equal footing before the law. But this was almost the only 
 effectively cohesive provision in the whole instrument. 
 
 John Fiske, Critical Period of American History. 94. 
 
 FISHER (1897) 
 
 It was unquestionably a very weak government, — a mere 
 league with so few of the attributes of federalism, and those 
 few so restricted, that it was not a federal or a national gov- 
 ernment in anjr true sense of the word. The fashion has pre- 
 vailed for a long time of attacking it in very severe terms, and 
 even of questioning the patriotism of the men who framed it. 
 But we must remember that it was simply a link in a long chain 
 of evolution which had been progressing for over a hundred 
 years, and continued, as we shall see, in the same steady 
 course. It was a great advance on all the plans that had pre- 
 ceded it, and, for purposes of development that was all that 
 was required. 
 
 The criticisms on its lack of federal power began almost as 
 soon as it appeared. When signed by the members of Con- 
 gress and sent to the States for ratification in 1778, most of 
 those States had finished their new constitutions, ou which they 
 had been engaged for several years. Constitution-making 
 was the order of the day ; everybody was prepared for discus- 
 sion, and no previous plan of union received such serious and 
 trained consideration. 
 
 Though the prevailing sentiment seems to have been that not 
 enough power was given, there were many who saw in the 
 Articles of Confederation a menace to the sovereignty of the 
 States. But even this state rights party, while they wished 
 greater safeguards for local liberty, wanted at the same time 
 more power and efficiency in the general government. 
 
 Sidney George Fisher, The Evolution of the Constitution of the United 
 States. 249, 250. 
 
1787] THE NORTHWEST ORDINANCE 227 
 
 Chapter XVI 
 THE NORTHWEST ORDINANCE (1787) 
 
 SUGGESTIONS 
 
 The Ordinance of 1787 contained the essence of all later constitu- 
 tional government for national domain. It was by far the most 
 important piece of general legislation of the epocli preceding the 
 Constitutional Convention. 
 
 The document was the conception of Dr. Manasseh Cutler of Massa- 
 chusetts ; it was reported to Congress by Nathan Dane, as chairman 
 of a committee to whom the subject had been I'eferred, and it was 
 passed with almost no alteration. The question of the competence 
 of Congress to pass this frame of government has given occasion to 
 much argument ; but it is of little moment, as the first Congress 
 under the Constitution re-enacted it. 
 
 The picturesque side of history comes out in the study of this docu- 
 ment. With the exception of the Puritan emigration, perhaps no one 
 episode in the growth of America sets forth more distinctly the con- 
 ditions, hopes, and aspirations of the people than this movement on 
 the part of a body of New Englanders, to open up the Northwest 
 Territory. The fact that the territory itself was ceded to the mother- 
 government by the different child-states gave a personal interest to 
 the frame of laws whereby this territory was to be governed. In the 
 perusal of this document it is well to trace the special quality of civil 
 rights, Habeas Corpus, trial by jury, bail, fines and punishments, treat- 
 ment of Indians, education, freedom of religion, and emancipation of 
 the negro. These enlightened provisions of this Ordinance should be 
 examined carefully as in a measure foreshadowing the doctrines of the 
 last three amendments of the Constitution. 
 
 The Northwest Ordinance is in reality a colonial charter, and the 
 foundation of the government of our later colonies — usually called 
 territories. Hence this document has an important relation to the 
 problems of colonial government which of late press upon the United 
 States. 
 
 For Outlines and Material, see Appendix A. 
 
228 THE NORTHWEST ORDINANCE [Ch. XVI 
 
 DOCUMENT 
 
 The Ordinance of 1787 
 Journals of An ORDINANCE FOR THE GOVERNMENT of 
 XIL 85-93. ™^ TERRITORY of the UNITED STATES, 
 
 North- West of the RIVER OHIO 
 
 BE IT ORDAINED by the United States in Con- 
 gress assembled, Tliat the said territory, for the 
 purposes of temporary government, be one district ; 
 subject, however, to be divided into two districts, 
 as future circumstances may in the opinion of Con- 
 gress, make it expedient. 
 
 Be it ordained by the authority aforesaid, That 
 the estates, both of resident and non-resident pro- 
 prietors in the said territory, dying intestate, shall 
 descend to, and be distributed among their children, 
 and the descendants of a deceased child in equal 
 parts ; the descendants of a deceased child or 
 grandchild, to take the share of their deceased par- 
 ent in equal parts among them : And where there 
 shall be no children or descendants, then in equal 
 parts to the next of kin, in equal degree ; and 
 among collaterals, the children of a deceased brother 
 or sister of the intestate, shall have in equal parts 
 among them, their deceased parents' share ; and 
 there shall in no case be a distinction between kin- 
 dred of the whole and half blood; saving in all 
 cases to the widow of the intestate, her third part 
 of the real estate for life, and one third part of the 
 personal estate ; and tliis law relative to descents 
 and dower, shall remain in full force until altered 
 by the legislature of the district. — And until the 
 governor and judges shall adopt laws as herein 
 after mentioned, estates in the said territory may 
 be devised or bequeathed by wills in writing, signed 
 and sealed by him or her, in whom the estate may 
 be (being of full age) and attested by three wit- 
 
1787] TEXT 229 
 
 nesses ; — and real estates may be conveyed by 
 lease and release, or bargain and sale, signed, 
 sealed, and delivered by the person being of full 
 age, in whom the estate may be, and attested by 
 two witnesses, provided such wills be duly proved, 
 and such conveyances be acknowledged, or the ex- 
 ecution thereof duly proved, and be recorded within 
 one year after proper magistrates, courts, and reg- 
 isters shall be appointed for that purpose ; and per- 
 sonal property may be transferred by delivery; 
 saving, however, to the French and Canadian in- 
 habitants, and other settlers of the Kaskaskies, 
 Saint Vincent's, and the neighbouring villages, who 
 have heretofore professed themselves citizens of 
 Virginia, their laws and customs now in force 
 among them, relative to the descent and convey- 
 ance of property. 
 
 Be it ordained by the authority aforesaid. That 
 there shall be appointed from time to time, by Con- 
 gress, a governor, whose commission shall continue 
 in force for the term of three years, unless sooner 
 revoked by Congress, he shall reside in the district, 
 and have a freehold estate therein, in one thousand 
 acres of land, while in the exercise of his oflice. 
 
 There shall be appointed from time to time, by 
 Congress, a secretary, whose commission shall con- 
 tinue in force for four years, unless sooner revoked ; 
 he shall reside in the district, and have a freehold 
 estate therein, in five hundred acres of land, while 
 in the exercise of his office ; it shall be his duty to 
 keep and preserve the acts and laws passed by the 
 legislature, and the public records of the district, 
 and the proceedings of the governor in his executive 
 department ; and transmit authentic copies of such 
 acts and proceedings, every six months, to the sec- 
 retar}^ of Congress : There shall also be appointed 
 a court to consist of three judges, any two of whom 
 to form a court, who shall have a common law juris- 
 diction, and reside in the district, and have each 
 
230 
 
 THE NORTHWEST ORDINANCE [Ch. XVI 
 
 This gave 
 rise to colli- 
 sions be- 
 tween the 
 government 
 and the 
 people. 
 
 therein a freehold estate in five hundred acres of 
 land, while in the exercise of their offices ; and their 
 commissions shall continue in force during good 
 behaviour. 
 
 The governor and judges, or a majority of them, 
 shall adopt and publish in the district, such laws of 
 the original states, criminal and civil, as may be 
 necessary, and best suited to the circumstances of 
 the district, and report them to Congress, from time 
 to time ; which laws shall be in force in the district 
 until the organization of the general assembly 
 therein, unless disapproved of by Congress ; but 
 afterwards the legislature shall have authority to 
 alter them as they shall think fit. 
 
 The governor for the time being, shall be com- 
 mander in chief of the militia, appoint and commis- 
 sion all officers in the same, below the rank of 
 general officers ; all general officers shall be ap- 
 pointed and commissioned by Congress. 
 
 Previous to the organization of the general as- 
 sembly, the governor shall appoint such magistrates 
 and other civil officers, in each county or township, 
 as he shall find necessary for the preservation of 
 the peace and good order in the same: After the 
 general assembly shall be organized, the powers and 
 duties of magistrates and other civil officers shall be 
 regulated and defined by the said assembly ; but all 
 magistrates and other civil officers, not herein other- 
 wise directed, shall, during the continuance of this 
 temporally government, be appointed by the gov- 
 ernor. 
 
 For the prevention of crimes and injuries, the 
 laws to be adopted or made shall have force in all 
 parts of the district, and for the execution of pro- 
 cess, criminal and civil, the governor shall make 
 proper divisions thereof — and he shall proceed 
 from time to time, as circumstances may require, 
 to lay out the parts of the district in which the 
 Indian titles shall have been extinguished, into 
 
1787] TEXT 231 
 
 counties and townships, subject, however, to such 
 alterations as may thereafter be made by the legis- 
 lature. 
 
 So soon as there shall be five thousand free male Such a gov- 
 
 inhabitants, of fuU ao;e, in the district, upon givino; eniment was 
 
 . ' 1 o » organized 
 
 proof thereof to the governor, they shall receive later, 
 authority, with time and place, to elect representa- 
 tives from their counties or townships, to represent 
 them in the general assembly; provided that for 
 every five hundred free male inhabitants, there shall 
 be one representative, and so on progressively with 
 the number of free male iuhabitants shall the right 
 of representation increase, until the number of rep- 
 resentatives shall amount to twenty-five; after 
 which the number and proportion of representatives 
 shall be regulated by the legislature : provided that 
 no person be eligible or qualified to act as a repre- 
 sentative, unless he shall have been a citizen of one 
 of the United States three years, and be a resident 
 in the district, or unless he shall have resided in the 
 district three years ; and in either case shall like- 
 wise hold in his own right, in fee simple, two hun- 
 dred acres of laud within the same : provided also, 
 that a freehold in fifty acres of land in the district, 
 having been a citizen of one of the states, and being 
 resident iu the district, or the like freehold and two 
 years residence in the district shall be necessary to 
 qualify a man as an elector of a representative. 
 
 The representatives thus elected, shall serve for 
 the term of two years ; and in case of the death of 
 a representative, or removal from office, the gov- 
 ernor shall issue a writ to the county or township, 
 for which he was a member, to elect another in his 
 stead, to serve for the residue of the term. 
 
 The general assembly, or legislature, shall consist The appoint- 
 of the governor, legislative council, and a house of ive council 
 representatives. The legislative council shall con- Y^3 ^^ ii^sti- 
 sist of five members, to continue in office five years, disliked, 
 unless sooner removed by Congress ; a.ny three of 
 
232 
 
 THE NORTHWEST ORDINANCE [Ch. XVI 
 
 This has 
 been the 
 practice for 
 territories 
 ever since. 
 
 whom to be a quorum : and the members of the 
 council shall be nominated and appointed in the fol- 
 lowing manner, to wit : As soon as representatives 
 shall be elected, the governor shall appoint a time 
 and place for them to meet together, and, when 
 met, they shall nominate ten persons, residents in 
 the district, and each possessed of a freehold in five 
 hundred acres of land, and return their names to 
 Congress ; five of whom Congress shall appoint and 
 commission to serve as aforesaid ; and whenever a 
 vacancy shall happen in the council, by death or 
 removal from office, the house of representatives 
 shall nominate two persons, qualified as aforesaid, 
 for each vacancy, and return their names to Con- 
 gress ; one of whom Congress shall appoint and 
 commission for the residue of the term. And every 
 five years, four months at least before the expira- 
 tion of the time of service of the members of coun- 
 cil, the said house shall nominate ten persons, 
 qualified as aforesaid, and return their names to 
 Congress ; five of whom Congress shall appoint aud 
 commission to serve as members of the council five 
 years, unless sooner removed. And the governor, 
 legislative council, and house of representatives, 
 shall have authority to make laws, in all cases, for 
 the good government of the district, not repuguant 
 to the principles and articles in this ordinance es- 
 tablished and declared. And all bills having passed 
 by a majority in the house, and by a majority in 
 the council, shall be referred to the governor for his 
 assent ; but no bill or legislative act whatever, shall 
 be of any force without his assent. The governor 
 shall have power to convene, prorogue and dissolve 
 the general assembly, when in his opinion it shall 
 be expedient. 
 
 The governor, judges, legislative council, sec- 
 retary, and such other officers as Congress shall 
 appoint in the district, shall take an oath or affirma- 
 tion of fidelity, and of office ; the governor before 
 
1787] TEXT 233 
 
 the president of Congress, and all other officers be- 
 fore the governor. As soon as a legislature shall 
 be formed in the district, the council and house as- 
 sembled, in one room, shall have authority, by joint 
 ballot, to elect a delegate to Congress, who shall 
 have a seat in Congress, with a right of debating, 
 but not of voting during this temporary govern- 
 ment. 
 
 And for extending the fundamental principles of 
 civil and religious liberty, which form the basis 
 whereon these republics, their laws and constitu- 
 tions are erected ; to fix and establish those prin- 
 ciples as the basis of all laws, constitutions, and 
 governments, which forever hereafter shall be 
 formed in the said territory : to provide also for the 
 establishment of states, and permanent government 
 therein, and for their admission to a share in the 
 federal councils on an equal footing with the orig- 
 inal states, a,t as early periods as may be consistent 
 with the general interest : 
 
 It is hereby ordained and declared, by the au- This is an 
 thority aforesaid. That the following articles shall ^^^^^^f^t^f" 
 be considered as articles of compact between the principle of 
 original states, and the people and states in the said limited de- 
 territory, and forever remain unalterable, unless by ^' 
 common consent, to wit : 
 
 Article the first. No person, demeaning himself 
 in a peaceable and orderly manner, shall ever be Freedom of 
 molested on account of his mode of worship or worship first 
 religious sentiments, in the said territory. United 
 
 Article the second. The inhabitants of the said States. 
 
 territory, shall always be entitled to the benefits of ^^® "^^^Ij^^o 
 
 the writ of habeas corpus, and of the trial by jury ; 40. > > > 
 
 of a proportionate representation of the people in This article 
 
 the legislature, and of judicial proceedings accord- T^^ copied 
 
 ing to the course of the common law. All persons Constitution 
 
 shall be bailable, unless for capital offences, where of the United 
 
 States It 
 the proof shall be evident, or the presumption great, ^^j^g ^-^^ q^^_ 
 
 AU fines shall be moderate ; and no cruel or unusual growth of 
 
234 
 
 THE NORTHWEST ORDINANCE [Ch. XVI 
 
 the trade dis- 
 turbance 
 throughout 
 the country. 
 
 The first 
 recognition 
 after the 
 Revolution 
 that public 
 education 
 was the duty 
 of govern- 
 ment. 
 
 There seems 
 no doubt 
 that the 
 Northwest 
 Territory 
 was consid- 
 ered to be an 
 integral part 
 of the United 
 States, sub- 
 ject to the 
 limitations, 
 and enjoying 
 the privi- 
 leges of the 
 Articles of 
 Confedera- 
 tion- 
 
 punishments shall be inflicted. No man shall be 
 deprived of his liberty or property, but by the judg- 
 ment of his peers, or the law of the land, and 
 should the public exigencies make it necessary, for 
 the common preservation, to take any person's 
 property, or to demand his particular services, full 
 compensation shall be made for the same. And in 
 the just preservation of rights and property, it is 
 understood and declared, that no law ought ever to 
 be made, or have force in the said territory, that 
 shall in any manner whatever interfere with, or 
 affect private contracts or engagements, bona fide, 
 and without fraud previously formed. 
 
 Article the third. Religion, morality and knowl- 
 edge, being necessary to good government and the 
 happiness of mankind, schools and the means of 
 education shall forever be encouraged. The utmost 
 good faith shall always be observed towards the 
 Indians ; their lands and property shall never be 
 taken from them without their consent ; and in their 
 property, rights and liberty, they never shall be in- 
 vaded or disturbed, unless in just and lawful wars 
 authorised by Congress ; but laws founded in 
 justice and humanity shall from time to time be 
 made, for preventing wrongs being done to them, 
 and for preserving peace and friendship with 
 them. 
 
 Article the fourth. The said territory, and the 
 states which may be formed therein, shall forever 
 remain a part of this confederacy of the United 
 States of America, subject to the articles of con- 
 federation, and to such alterations thei'ein, as shall 
 be constitutionally made ; and to all the acts and 
 ordinances of the United States in Congress as- 
 sembled, conformable thereto. The inhabitants 
 and settlers in the said territory, shall be subject to 
 pay a part of the federal debts, contracted or to be 
 contracted, and a proportional part of the expences 
 of government, to be apportioned on them by Con- 
 
1787] TEXT 235 
 
 gress, according to the same common rule and 
 measure, by which apportionments thereof shall be 
 made on the other states ; and the taxes for paying 
 their proportion, shall be laid and levied by the 
 authority and direction of the legislatures of the 
 district or districts or new states, as in the original 
 states, within the time agreed upon by the United 
 States in Congress assembled. The legislatures of 
 those districts or new states, shall never interfere 
 with the primary disposal of the soil by the United 
 States in Congress assembled, nor with any regula- 
 tions Congress may find necessary for securing the 
 title in such soil to the bona fide purchasers. No 
 tax shall be imposed on lands the property of the 
 United States ; and in no case shall non-resident 
 proprietors be taxed higher than residents. The 
 navigable waters leading into the Missisippi and St. 
 Lawrence, and the carrying places between the 
 same, shall be common highways, and forever free, 
 as well to the inhabitants of the said territory, as to 
 the citizens of the United States, and those of any 
 other states that may be admitted into the con- 
 federacy, without any tax, impost, or duty therefor. 
 Article the fifth. There shall be formed in the 
 said territory, not less than three, nor more than 
 five states ; and the boundaries of the states, as 
 soon as Virginia shall alter her act of cession, and 
 consent to the same, shall become fixed and estab- 
 lished as follows, to wit : The western state in the 
 said territory, shall be bounded by the Missisippi, 
 the Ohio and "Wabash rivers ; a direct line drawn 
 from the Wabash and Post Vincents due north to 
 the territorial line between the United States and 
 Canada ; and by the said territorial line to the lake 
 of the Woods and Missisippi. The middle state 
 shall be bounded by the said direct line, the Wabash 
 from Post Vincents to the Ohio ; by the Ohio, by a 
 direct line drawn due north from the mouth of the 
 Great Mianji, to the said territorial line, and by the 
 
236 THE NORTHWEST ORDINANCE [Ch. XVI 
 
 said territorial line. The eastern state shall be 
 bounded by the last mentioned direct line, the Ohio, 
 Pennsylvania, and the said territorial line : provided 
 however, and it is further understood and declared, 
 that the boundaries of these three states, shall be 
 subject so far to be altered, that if Congress shall 
 hereafter find it expedient, they shall have authority 
 to form one or two states in that part of the said 
 territory which lies north of an east and west line 
 drawn through the southerly bend or extreme of 
 The Colonial lake Michigan. And whenever any of the said 
 status of the states, shall have sixty thousand free inhabitants 
 Territory therein, such state shall be admitted, by its dele- 
 was intended gates, into the Congress of the United States, on an 
 rarv^ ^*^™^°' ®^"^1 footing with the original states, in all respects 
 whatever ; and shall be at liberty to form a per- 
 manent constitution and state government : pro- 
 vided the constitution and government so to be 
 formed, shall be republican, and in conformity to 
 the principles contained in these articles ; and so far 
 as it can be consistent with the general interest of 
 the confederacy, such admission shall be allowed af 
 an earlier period, and when there may be a less 
 number of free inhabitants in the state than sixty 
 thousand. 
 This article Article the sixth. There shall be neither slavery 
 did not coni- nor involuntary servitude in the said territorj'^, 
 cate^the ^ ^' otherwise than in the punishment of crimes, whereof 
 Northwest to the party shall have been duly convicted : provided 
 
 freedom, always, that anv person escaping into the same, 
 since slaves -^ ' -^ ^ i » ' 
 
 then in the from whom labour or service is lawfully claimed in 
 
 territory ^ny one of the oi'iginal states, such fugitive may be 
 could be held » ' n ./ 
 
 so lono- as lawfully reclaimed, and conveyed to the person 
 they lived, claiming his or her labour or service as aforesaid. 
 practic^Hy -^^ ^^ ordained by the authority aforesaid, That 
 
 an anti-slav- the resolutions of the 23d of April, 1784, relative to 
 ery clause, ^|-,g subject of this ordinance, be, and the same are 
 hereby repealed and declared null and void. 
 
1787] CONTEMPORARY EXPOSITION 237 
 
 CONTEMPORARY EXPOSITION 
 
 DANE (1787) 
 
 New York, July 16, 1787. 
 Dear Sir : — I am obliged to you for yours of the 11th inst. 
 With pleasure I comrauuicate to you what we are doing in Con- 
 gress, not so much from a consciousness that what we do is 
 well done, as from a desire that you may be acquainted with 
 our proceedings. We have been much engaged in business 
 for ten or twelve days past, for a part of which we have had 
 8 states. There appears to be a disposition to do business ; 
 and the arrival of R. H. Lee is of considerable importance. I 
 think his character serves at least in some degree, to check the 
 effects of the feeble habits and too [tardy ?] modes of thinking 
 in some of his countrymen. We have been employed about 
 several objects — the principal ones of which have been the 
 Government inclosed, and the Ohio Purchase. The former 
 you will see is completed, and the latter will be probably com- 
 pleted to-morrow. We tried one day to patch up M. S. P. 
 systems of W. Govern't. Started new ideas, and committed 
 the whole to Carriugton, Dane, R. H. Lee, Smith, and Kean. 
 We met several times, and at last agreed on some principles, 
 at least Lee, Smith and myself. We found ourselves rather 
 pressed ; the Ohio Company appeared to purchase a large tract 
 of the Federal lands — about 6 or 7 millions of acres ; and we 
 wanted to abolish the old system, and get a better one for the 
 Government of the country — and we finally found it necessary 
 to adopt the best system we could get. All agreed, finally, to 
 the inclosed, except A. Yates. He appeared in this case, as 
 in most others, not to understand the subject at all. I think 
 the number of free inhabitants, 60,000, which are requisite 
 for the admission of a new State into the Confederacy, is 
 too small ; but, having divided the whole territory into three 
 States, this number appeared to me to be less important. 
 Each State, in the common course of things, must become 
 important soon after it shall have that number of inhabitants. 
 The Eastern State of the three will probably be the first, 
 and more important than the rest, and will, no doubt, be 
 settled chiefly by Eastern people ; and there is, I think, full 
 
238 THE NORTHWEST ORDINANCE [Ch. XVI 
 
 an equal chance of its adopting Eastern politics. When I 
 drew the Ordinance, which passed (a few words excepted) 
 as I originally formed it, I had no idea the States would agree 
 to the Sixth art. prohibiting slavery, as only Massa. of the 
 Eastern States was present, and therefore omitted it in the 
 draft ; but, finding the House favourably disposed on this sub- 
 ject, after we had completed the other parts, I moved the art., 
 which was agreed to without opposition. We are in a fair way 
 to fix the terms of our Ohio sale, etc. ; we have been upon it 
 steadily three days. The magnitude of the purchase makes us 
 very cautious about the terms of it, and the security neces- 
 sary to insure the performance of them. 
 
 We have directed the Board to inquire into and report on 
 Hothers affairs, etc. 
 
 Massa. Legisa. was prorogued the 7th inst., having con- 
 tinued the Tender Act, as it is called, to Jan. 1, 1788, and hav- 
 ing passed no other Act of importance, except what, I presume, 
 you have seen, respecting the raising of troops, and the powers 
 of the Governor to pursue the rebels, etc. 
 
 You ask me how I like my new colleagues. Sedgwick, you 
 know, we all esteem, but I fear he will not make his attendance 
 an object. Thatcher, I am quite unacquainted with. I do not 
 know whether Mr. Otis, at his period of life, and under his mis- 
 fortune, will enter with vigour into Federal politics. I wish his 
 accounts with the Union had been settled, etc. 
 
 Nothing occurs worth particular notice. 
 
 Your affecta. friend, 
 Hon. Rufus King, Esq. N. Dane. 
 
 P. S. — States present: Massa., N. Y., N. J., Delaware, 
 Virga., N. Cara., So. Carolina, and Georgia. Brother Holton 
 is rather an invalid, is not well able to take an active part in 
 business, but I think supports pretty good Eastern politics. 
 
 Nathan Dane, iu Cutlers, Life ofManasseh Cutler. I. 371-373. 
 
 CRITICAL COMMENT 
 WEBSTER (1830) 
 
 At the foundation of the constitution of these new North- 
 western States lies the celebrated Ordinance of 1787. Wg 
 
1830-1833] CRITICAL COMMENT 239 
 
 are accustomed, Sir, to praise the lawgivers of antiquity ; we 
 help to perpetuate the fame of Solon and Lycurgus ; but I 
 doubt whether one single law of any lawgiver, ancient or 
 modern, has produced effects of more distinct, marked, and 
 lasting character than the Ordinance of 1787. That instrument 
 was drawn by Nathan Dane, then and now a citizen of Massa- 
 chusetts. It was adopted, as I think I have understood, with- 
 out the slightest alteration ; and certainly it has happened to 
 few men to be the authors of a political measure of more large 
 and enduring consequence. It fixed for ever the character of 
 the population in the vast regions northwest of the Ohio, b}^ 
 excluding from them involuntary servitude. It impressed on 
 the soil itself, while it was yet a wilderness, an incapacity to 
 sustain any other than freemen. It laid the interdict against 
 personal servitude, in original compact, not only deeper than 
 all local law, but deeper, also, than all constitutions. Under 
 the circumstances then existing, I look upon this original and 
 seasonable provision as a real good attained. 
 
 Daniel Webster, Works. III. 263, 264. 
 
 CHASE (1833) 
 
 By that [ordinance] of 1787, provision was made for suc- 
 cessive forms of territorial government, adapted to successive 
 steps of advancement in the settlement of the western country. 
 It comprehended an intelligible system of law on the descent 
 and conveyance of real property, and the transfer of personal 
 goods. It also contained five articles of compact between the 
 original states, and the people and states of the territory, 
 establishing certain great fundamental principles of govern- 
 mental duty and private right, as the basis of all future con- 
 stitutions and legislation, unalterable and indestructible except 
 by that final and common ruin, which as it has overtaken all 
 former systems of human polity, may yet overwhelm our Amer- 
 ican union. Never, probably, in the history of the world, did a 
 measure of legislation so accurately fulfil, and yet so mightily 
 exceed the anticipations of the legislators. The ordinance has 
 been well described, as having been a pillar of cloud by day, 
 and of fire by night, in the settlement and government of the 
 northwestern states. "When the settlers went into the wilder- 
 
240 THE NORTHWEST ORDINANCE [Ch. XVI 
 
 ness, they found the law already there. It was impressed upon 
 the soil itself, while it yet bore up nothing but the forest. The 
 purchaser of land became, by that act, a party to the compact, 
 and bound by its perpetual covenants, so far as its conditions 
 did not conflict with the terms of the cessions of the states. 
 
 Salmon P. Chase, Sketch of the History of Ohio. 8-9. 
 
 BANCROFT (1S34) 
 
 Before the Federal Convention had referred its resolutions to 
 a committee of detail, an interlude in Congress was shapening 
 the character and destiny of the United States of America. 
 Sublime and humane and eventful in the history of mankind 
 as was the result, it will take not many words to tell how it 
 was brought about. For a time wisdom and peace and justice 
 dwelt among men, and the great Ordinance, which could alone 
 give continuance to the union, came in serenity and stillness. 
 Every man that had a share in it seemed to be led by an invisi- 
 ble hand to do just what was wanted of him; all that was 
 wrongfully undertaken fell to the ground to wither by the way- 
 side ; whatever was needed for the happy completion of the 
 mighty work arrived opportunely, and just at the right moment 
 moved into its place. 
 Geokge Banckoft, History of the United States (final revision). VI. 277. 
 
 JACOB BURNET (1847) 
 
 The great principles of civil and religious liberty contained 
 in this invaluable document, were guaranteed to the people of 
 the Territory and their posterity forever, by the venerable 
 Fathers of the Revolution, which entitled them to endless 
 gratitude. 
 
 Jacob Burnet, Notes on the Early Settlement of the North West Terri- 
 tory. 304. 
 
 HOAR (1887) 
 
 The Ordinance of 1787 belongs with the Declaration of 
 Independence and the Constitution. It is one of the three title 
 deeds of American constitutional liberty. As the American 
 youth for uncounted centuries shall visit the capital of his 
 country — strongest, richest, freest, happiest of the nations of 
 
1888] CRITICAL COMMENT 241 
 
 the earth — from the stormy coast of New England, from the 
 luxuriant regions of the Gulf, from the lakes, from the prairie 
 and the plain, from the Grolden Gate, from far Alaska — he 
 will admire the evidences of its grandeur and the monuments of 
 its historic glory. He will find there rich libraries and vast 
 museums and great cabinets, which show the product of that 
 matchless inventive genius of America, which has multiplied a 
 thousand fold the wealth and comfort of human life. He will 
 see the simple and modest portal through which the great line 
 of the Republic's chief magistrates have passed at the call of 
 their country to assume an honour surpassing that of emperors 
 and kings, and through which they have returned, in obedience 
 to her laws, to take their place again as equals in the ranks of 
 their fellow-citizens. He will stand by the matchless obelisk 
 which, loftiest of human structures, is itself but the impei'fect 
 type of the loftiest of human characters. He will gaze upon 
 the marble splendours of the capitol, in whose chambers are 
 enacted the statutes under which the people of a continent 
 dwell together in peace, and the judgments are rendered which 
 keep the forces of state and nation alike within their appointed 
 bounds. He will look upon the record of great wars and the 
 statues of great commanders. But if he knew his country's 
 history, and considered wisely the sources of her glory, there is 
 nothing in all these which will so stir his heart as two faded 
 and time-soiled papers, whose characters were traced by the 
 hand of the fathers a hundred years ago. They are the original 
 records of the acts which devoted this nation forever to equality, 
 to education, to religion and to liberty. One is the Declaration 
 of Independence, the other the Ordinance of 1787. 
 
 George F. Hoar, Oration at Centennial at Marietta. 
 HINSDALE (1888) 
 
 We have seen that four different ordinances had been pre- 
 viously reported to Congress, and that one had already been 
 enacted. The fifth and great Ordinance, as Mr. Bancroft says, 
 embodied the best parts of all its predecessors. But it em- 
 bodied more ; and all the evidence points to the conclusion 
 that much of the new material was contained in the papers 
 that Dr. Cutler handed to the committee, July 10th, after be 
 
 16 
 
242 THE NORTHWEST ORDINANCE [Ch. XVI 
 
 had studied the ordinance then pending. Whoever may have 
 brought them forward, the imperishable principles of polity 
 woven into the Ordinance of 1787 were the ripe fruit of many 
 centuries of Anglo-Saxon civilization ; but the best places to 
 search for them are the bills of rights of the Revolutionary con- 
 stitutions. . . . No act of American legislation has called out 
 more eloquent applause than the Ordinance of 1787. States- 
 men, historians, and jurists have vied with one another in cele- 
 brating its praises. In one respect it has a proud pre-eminence 
 over all other acts of legislation on the American statute-books. 
 It alone is known by the date of its enactment, and not by its 
 subject-matter. It was more than a law or statute. It was a 
 constitution for the Territory Northwest of the River Ohio. 
 More than this, it was a model for later legislation relating to 
 the national territories ; and some of its provisions, particularly 
 the prohibition of slavery, stand among the greatest precedents 
 of our history. 
 
 Burke A. Hinsdale, The Old Northivest^ 273, 276. 
 
 CUTLERS (1888) 
 
 Up to the time of Dr. Cutler's arrival in New York, the 
 labors of Congress had brought forth abstractions and skele- 
 tons, mere outlines. It is not improbable that the presentation 
 of a scheme of settlement, such as had " never been attempted in 
 America," aroused the zeal and stimulated the efforts of Con- 
 gress in a more practical direction, and led to the adoption of 
 acceptable lines of policy in organizing the " new state" that 
 had been so long the dream of an army by whose valor and 
 sacrifices the territory had been acquired. That the organic law 
 should have been new-modeled, and made acceptable to the men 
 who were ready to occupy and cultivate that distant territory, 
 is not surprising. 
 
 It may be claimed for the Ordinance itself, that it is the only 
 instance in human history, (with a single exception) where 
 the laws and constitutions have been prepared beforehand, 
 pre-arranged, and projected into a territory prior to its occupa- 
 tion by its future inhabitants. The Divine economy did so 
 arrange, pre-ordain, and publish to His chosen people the law, 
 1 Copyright, 1899, by Silver, Burdett & Co. 
 
1888J CRITICAL COMMENT 243 
 
 ordinance, and polity that was to govern them after they had 
 entered their promised land ; but, throughout the many changes, 
 migrations, and conquests under which the human race has 
 spread itself over and occupied the earth, either the will of the 
 conqueror after conquest and occupation, or the growth of 
 governmental principles subsequently, has been the origin of 
 political and civil institutions. Here, however, is an attempt 
 to prepare beforehand forms of government, laws, and principles 
 upon bases that were intended to remain forever unalterable. 
 We now have a century to attest their intrinsic value. Not the 
 least valuable part of this wise forecast and preparation was 
 that provision reaching down to the virgin soil that gave abso- 
 lute ownership of it in convenient quantities and on terms that 
 secured to each person an opportunity to acquire a homestead 
 of his own, with provision for those civil divisions, townships, 
 where the " essence of ownership," control, could be exerted 
 politically in all the important social and civil affairs of life. 
 
 Upon this foundation, guarantees of human rights, in their 
 broadest application, with equality before the law, were intro- 
 duced into the governmental structure. In addition to these 
 elements of futui'e stability, the educational and moral forces 
 are distinctly recognized and incorporated into the foundations. 
 Freedom of worship, without governmental control, direction, 
 or patronage; liberty, religion, morality, and knowledge — all 
 stand side by side with the right of jury trial, habeas corpus, 
 inviolability of private contracts, and all other usual and 
 essential safeguards. 
 
 Cutlers, Life of Rev. Manasseh Cutler. 368, 369. 
 
244 FEDERAL CONSTITUTION [Ch. XVII 
 
 Chaptee XVII 
 THE CONSTITUTION OF THE UNITED STATES (1787) 
 
 SUGGESTIONS 
 
 The CoBStitutional Convention at Philadelphia met May 29, 1787. 
 All the States were represented except Rhode Island. Washington, 
 Franklin, Hamilton, and Madison were among the fifty-five mem- 
 bers. The delegates sat with closed doors, keeping their proceed- 
 ings secret. They decided that instead of revising the Articles of 
 Confederation they would draw up an entirely new Constitution. 
 George Washington presided over the convention, and Benjamin 
 Franklin, Robert Morris, James Madison, Rufus King, Roger Sher- 
 man, Alexander Hamilton, John Dickinson, Charles C. Pinckney, 
 J. Rutledge, and Gouverneur Morris, were among its distinguished 
 members. Madison, Hamilton, Washington, and Franklin took the 
 leading part in the great work of drafting the new Constitution, and 
 after its adoption by the convention, Madison and Hamilton used 
 their influence, with great effect, to urge its ratification by the 
 states, especially New York. After a stormy session of nearly four 
 months, during which the convention several times threatened to 
 break up in hopeless dispute, the Constitution was at last adopted. 
 
 The fund of exposition and comment upon this document and its 
 group of framers is of such extent that the few criticisms for which 
 there is room might be many times multiplied. The Constitution, 
 founded on compromises, made serviceable by its elasticity, and 
 supplemented by an imperfect bill of rights, is a two-handed sword 
 supporting the Federal government and yet ever ready to serve its 
 purpose in defending the dignity of the State. The historical student 
 who has made the previous documents a basis for the study of the 
 Constitution may easily trace precedents for nearly all its strongest 
 features. The supremacy of the Supreme Court, the power of the 
 Executive, and the legislative authority of Congress unite in creating 
 a well knit triune government such as was new in the history of 
 mankind. 
 
 For Outlines and Analysis, see Appendix B, § 4. 
 
1787] TEXT 245 
 
 DOCUMENT 
 Constitution of the United States of America [1787-1789]. 
 
 We the People of the United States, in Order to This text 
 form a more perfect Union, establish Justice, in- ^ ^''om 
 sure domestic Tranquillity, provide for the com- History 
 mon defence, promote the general Welfare, and Leaflets No. 
 secure the Blessings of Liberty to ourselves and it is'reprinted 
 our Posterity, do ordain and establish this Con- from the 
 
 STiTUTiON for the United States of America. original _ 
 
 manuscript. 
 Precedents 
 ARTICLE. I. for nearly all 
 
 the import- 
 
 Section. 1. All legislative Powers herein granted ant features 
 
 Oitliis no OH- 
 
 shall be vested in a Congress of the United States, ment are 
 
 which shall consist of a Senate and House of found in 
 -p, ... English Con- 
 
 Representatives, stitutional 
 
 Section. 2. [§ 1.] The House of Representatives documents, 
 shall be composed of Members chosen every second be*trami™^^ 
 Year by the People of the several States, and the through the 
 Electors in each State shall have the Qualifications colonial 
 requisite for Electors of the most numerous Branch state consti- 
 of the State Legislature. tutions into 
 
 [§ 2.] No Person shall be a Representative who jjjgjjt. Com- 
 
 shall not have attained to the Age of twenty-five pare Pream- 
 
 Years, and been seven Years a Citizen of the United ble with Arts. 
 ' ot Conf., 1. 
 
 States, and who shall not, when elected, be an In- and iii. 
 
 habitant of that State in which he shall be chosen. Compare 1 
 
 [§ 3.] Representatives and direct Taxes shall be ^^^?^^^^ 
 
 apportioned among the several States which may be Confeder- 
 
 in eluded within this Union, according to their respec- ation, v. 
 
 five Numbers, [which shall be determined by adding Superseded 
 
 to the whole Number of free Persons, including ^jje^ljment 
 
 those bound to Service for a Term of Years, and ex- The contest 
 
 eluding Indians not taxed, three fifths of all other f^^^F *^^ 
 
 Persons.] The actual Enumeration shall be made resentation 
 
 within three Years after the first Meeting of the ended in the 
 
 Congress of the United States, and within every Compromise 
 
 subsequent Term of ten Years, in such Manner as which gave 
 
246 FEDERAL CONSTITUTION [Ch. XVII 
 
 the states they shall by Law direct. The Number of Represen- 
 
 equal repre- tatives shall not exceed one for every tMrty Thou- 
 
 the Senate sand, but each State shall have at Least one 
 
 and propor- Representative ; [and until such enumeration shall 
 
 sentation^in ^® made, the State of New Hampshire shall be 
 
 the House, entitled to chuse three, Massachusetts eight, Rhode- 
 
 Ji*f *^^^*^®' Island and Providence Plantations one, Connecticut 
 
 nfths repre- ' 
 
 sentation of Ave, New- York six, New Jersey four, Pennsylvania 
 
 fJ^'^'S °^*'^^ sight, Delaware one, Maryland six, Virginia ten, 
 
 Ratio "was North Carolina five, South Carolina five, and 
 
 object of the Georgia three.] 
 
 ComproSe. t§ ^•] ^^^^ vacancies happen in the Representa- 
 tion from any State, the Executive Authority thereof 
 shall issue Writs of Election to fill such Vacancies. 
 [§ 5.] The House of Representatives shall chuse 
 their Speaker and other Officers ; and shall have the 
 sole Power of Impeachment. 
 
 Section. 3. [§ 1.] The Senate of the United 
 States shall be composed of two Senators from each 
 State chosen by the Legislature thereof, for six 
 Years ; and each Senator shall have one Vote. 
 
 [§ 2.] Immediately after they shall be assembled 
 in Consequence of the first Election, they shall be 
 divided as equally as may be into three Classes. 
 The Seats of the Senators of the first Class shall be 
 vacated at the Expiration of the second Year, of the 
 second Class at the Expiration of the fourth Year, 
 and of the third Class at the Expiration of the sixth 
 Year, so that one third may be chosen every second 
 Year ; and if Vacancies happen by resignation, or 
 otherwise, during the Recess of the Legislature of 
 any State, the Executive thereof may make tempo- 
 rary Appointments until the next Meeting of the 
 Legislature, which shall then fill such Vacancies. 
 
 [§ 3.] No Person shall be a Senator who shall not 
 have attained to the Age of thirty Years, and been 
 nine Years a Citizen of the United States, and who 
 shall not, when elected, be an Inhabitant of that 
 State for which he shall be chosen. 
 
1787] TEXT '2,4:1 
 
 [§ 4.] The Vice President of the United States, 
 shall be President of the Senate, but shall have no 
 Vote, unless they be equally divided. 
 
 [§ 5.] The Senate shall chuse their other Officers, 
 and also a President pro tempore, in the Absence of 
 the Vice President, or when he shall exercise the 
 Office of President of the United States. 
 
 [§ 6.] The Senate shall have the sole Power to try 
 all impeachments. When sitting for that Purpose, See Art. 
 they shall be on Oath or Affirmation. When the "• ^^^t. 4. 
 President of the United States is tried, the Chief 
 Justice shall preside : And no Person shall be con- 
 victed without the Concurrence of two thirds of the 
 Members present. 
 
 [§ 7.] Judgment in Cases of Impeachment shall 
 not extend further than to removal from Office, and 
 disqualification to hold and enjoy any Office of 
 honor, Trust or Profit under the United States ; but 
 the Party convicted shall nevertheless be liable and 
 subject to Indictment, Trial, Judgment and Punish- 
 ment, according to Law. 
 
 Section. 4. [§ 1.] The Times, Places and Man- The only 
 ner of holding Elections for Senators and Repre- cm^gre^sfcan 
 sentatives, shall be prescribed in each State by the in terms set 
 Legislature thereof; but the Congress may at a'^J wjg^'iatkm 
 time by Law make or alter such Regulations, ex- 
 cept as to the Places of chusing Senators. 
 
 [§ 2.] The Congress shall assemble at least once 
 in every Year, and such Meeting shall be on the 
 first Monday in December, unless they shall by Law 
 appoint a different Day. 
 
 Section. 5. [§ 1.] Each House shall be the This provi- 
 
 Judge of the Elections, Returns and Qualifications |°^iJgj^^ ^^ 
 
 of its own Members, and a Majority of each shall origin; since 
 
 constitute a Quorum to do Business ; but a smaller 1868 the sub- 
 „ , . , T 1 ject has been 
 
 Number may adjourn from day to day, and may be transferred 
 
 authorized to compel the attendance of absent to the Eng- 
 
 Members, in such Manner, and under such Penalties 
 
 as each House may provide. 
 
248 
 
 FEDERAL CONSTITUTION 
 
 [Ch. XVII 
 
 Articles of 
 Confedera- 
 tion, Art. V. 
 
 A privilege 
 in its most 
 ancient form. 
 See Bill of 
 Rights, Art. 
 ix. ; Act of 
 Settlement. 
 
 [§ 2.] Each House may determine the Rules of 
 its Proceedings, punish its Members for Disorderly 
 Behaviour, and, with the Concurrence of two thirds, 
 expel a Member. 
 
 [§ 3.] Each House shall keep a Journal of its 
 Proceedings, and from time to time publish the 
 same, excepting such parts as may in their Judg- 
 ment require Secrecy; and the Yeas and Nays of 
 the Members of either House on any question shall, 
 at the Desire of one fifth of those Present, be 
 entered on the Journal. 
 
 [§ 4.] Neither House, during the Session of 
 Congress, shall, without the Consent of the other, 
 adjourn for more than three days, nor to any other 
 Place than that in which the two Houses shall be 
 sitting. 
 
 Section. 6. [§ 1.] The Senators and Representa- 
 tives shall receive a Compensation for their Ser- 
 vices, to be ascertained by Law, and paid out of 
 the Treasury of the United States. They shall in 
 all Cases, except Treason, Felony and Breach of 
 the Peace, be privileged from Arrest during their 
 Attendance at the Session of their respective 
 Houses, and in going to and returning from tlie 
 same ; and for any Speech or Debate in either 
 House, they shall not be questioned in any other 
 Place. 
 
 [§ 2.] No Senator or Representative shall, dur- 
 ing the Time for which he was elected, be appointed 
 to any civil Office under the Authority of the United 
 States, which shall have been created, or the Emol- 
 uments whereof shall have been encreased during 
 such time ; and no person holding any Office under 
 the United States, shall be a Member of either 
 House during his Continuance in Office. 
 
 Section. 7. [§ 1.] All Bills for raising Revenue 
 shall originate in the House of Representatives ; 
 but the Senate may propose or concur with Amend- 
 ments as on other Bills. 
 
1787] TEXT 249 
 
 [§ 2.] Every Bill which shall have passed the 
 House of Representatives and the Senate, shall, 
 before it become a Law, be presented to the Presi- 
 dent of the United States ; If he approve he shall 
 sign it, but if not he shall return it, with his Objec- 
 tions to that House in which it shall have originated, 
 who shall enter the Objections at large on their 
 Joui'nal, and proceed to reconsider it. If after 
 such Reconsideration two thirds of that House 
 shall agree to pass the Bill, it shall be sent, to- 
 gether with the Objections, to the other House, by 
 which it shall likewise be reconsidered, and if 
 approved by two-thirds of that House, it shall 
 become a Law. But in all such Cases the Votes of 
 Houses shall be determined by yeas and Nays, 
 and the Names of the Persons voting for and 
 against the Bill shall be entered on the Journal of 
 each House respectively. If any Bill shall not be 
 returned by the President within ten Days (Sun- 
 days excepted) after it shall have been presented to 
 him, the same shall be a Law, in like Manner 
 as if he had signed it, unless the Congress by their 
 Adjournment prevent its Return, in which Case it 
 shall not be a Law. 
 
 [§ 3.] Every Order, Resolution, or Vote to ^i^ectly 
 which the Concurrence of the Senate and House of the Massa- 
 Representatives may be necessary (except on a cliusetts 
 question of Adjournment) shall be presented to the of'nso" ^^"^ 
 President of the United States ; and before the See Instru- 
 same shall take Effect, shall be approved by him, '^'entofGov- 
 
 ' ^ ^ J ^ ernment, 
 
 or being disapproved by him, shall be repassed by xxiv. 
 two thirds of the Senate and House of Representa- 
 tives, according to the Rules and Limitations pre- 
 scribed in the Case of a Bill. 
 
 Section. 8. The Congress shall have Power The power 
 [§ L] To lay and collect Taxes, Duties, Imposts ^o initiate all 
 and Excises, to pay the Debts and provide for the most effect- 
 common Defence and general Welfare of the United ual control 
 States ; but all Duties, Imposts and Excises shall treSur^y'^and 
 be uniform throughout the United States ; of the power 
 
250 
 
 FEDERAL CONSTITUTION 
 
 [Ch. XVII 
 
 of the ex- 
 ecutive. 
 Compare 
 (l)with Con- 
 fed. Art. 
 viii. 
 
 This full list 
 of congres- 
 sional powers 
 is but a 
 modification 
 or adaptation 
 of the 
 
 powers given 
 to colonial 
 legislatures 
 and English 
 Parliament 
 dating back 
 to Witenage- 
 mot. 
 
 For example: 
 note Magna 
 Cliarta, Art. 
 
 XXXV. 
 
 [§ 2.] To borrow Money on the credit of the 
 United States; 
 
 [§ 3.] To regulate Commerce with foreign 
 Nations, and among the several States, and with 
 the Indian Tribes ; 
 
 [§ 4.] To establish an uniform Rule of Naturali- 
 zation, and uniform Laws on the subject of Bank- 
 ruptcies throughout the United States ; 
 
 [§ 5.] To coin Money, regulate the Value 
 thereof, and of foreign Coin, and fix the Standard 
 of Weights and Measures ; 
 
 [§ 6,] To provide for the Punishment of counter- 
 feiting the Securities and current Coin of the United 
 States ; 
 
 [§ 7.] To establish Post Offices and post Roads; 
 
 [§ 8.] To promote the Progress of Science and 
 useful Arts, by securing for limited Times to 
 Authors and Inventors the exclusive Right to their 
 respective Writings and Discoveries ; 
 
 [§ 9.] To constitute Tribunals inferior to the 
 supreme Court ; 
 
 [§ 10.] To define and punish Piracies and 
 Felonies committed on the high Seas, and Offences 
 against the Law of Nations ; 
 
 [§ 11.] To declare War, grant Letters of 
 Marque and Reprisal, and make Rules concerning 
 Captures on Land and Water ; 
 
 [§ 12.] To raise and support Armies, but no 
 Appropriation of Money to that Use shall be for a 
 longer Term than two Years ; 
 
 [§ 13,] To provide and maintain a Navy; 
 
 [§ 14.] To make Rules for the Government and 
 Regulation of the land and naval Forces ; 
 
 [§ 15.] To provide for calling forth the Militia 
 to execute the Laws of the Union, suppress Insur- 
 rections and repel Invasions ; 
 
 [§ 16.] To provide for organizing, arming, and 
 disciplining, the Militia, and for governing such 
 Part of them as may be employed in the Service of 
 
1787] TEXT 251 
 
 the United States, reserving to tlie States respec- 
 tively, the Appointment of the Officers, and the 
 Authority of training the Militia according to the 
 discipline prescribed by Congress ; 
 
 [§ 17.] To exercise exclusive Legislation in all 
 Cases whatsoever, over such District (not exceed- 
 ing ten Miles square) as may, by Cession of partic- 
 ular States, and the Acceptance of Congress, 
 become the Seat of the Government of the United 
 States, and to exercise like Authority over all 
 Places purchased by the Consent of the Legislature 
 of the State in which the same shall be, for the 
 Erection of Forts, Magazines, Arsenals, dock- 
 Yards, and other needf ul*Buildings ; — And 
 
 [§ 18.] To make all Laws which shall be neces- ^pj^jg 
 sary and proper for carrying into Execution the clause later 
 foregoing Powers, and all other Powers vested by pedSs and 
 this Constitution in the Government of the United Kepublicans. 
 States, or in any Department or Officer thereof. 
 
 Section. 9. [§ 1.] CThe Migration or Importa- Third com- 
 
 tion of such Persons as an}^ of the States now i^sT^^^im- 
 
 existing shall think proper to admit, shall not be portant be- 
 
 prohibited by the Congress prior to the Year one ^'^^^^ ^^^ 
 ^ •' '^ / . , , ^ vote of the 
 
 thousand eight hundred and eight, but a lax or Southern 
 
 duty may be imposed on such Importation, not States was 
 
 exceeding ten dollars for each Person.] 
 
 [§ 2.] The Privilege of the Writ of Habeas See Magna 
 
 Corpus shall not be suspended, unless when in Charta, Art. 
 
 Cases of Rebellion or Invasion the public Safety 
 
 may require it. 
 
 r§ 3.1 No Bill of Attainder or ex post facto ^liese 
 ^ ^ ., , -, clauses ex- 
 
 Law shall be passed, tended by the 
 
 [§ 4.] No Capitation, or other direct. Tax shall first eight 
 be laid, unless in Proportion to the Census or 
 Enumeration herein before directed to be taken. 
 
 [§ 5.] No Tax or Duty shall be laid on Articles 
 exported from any State. 
 
 [§ 6.] No Preference shall be given by any 
 Regulation of Commerce or Revenue to the Ports of 
 
252 FEDERAL CONSTITUTION [Ch. XVII 
 
 The appro- one State over those of another : nor shall Vessels 
 
 pnation of bound to, or from, one State, be oblisfed to enter, 
 
 supplies -r^ • . 
 
 (1353) and clear, or pay Duties m another. 
 
 auditing ac- [§ 7.] No Money shall be drawn from the Trea- 
 
 are here com- ^"^y? ^^^ ^^ Consequence of Appropriations made 
 
 bined. by Law ; and a regular Statement and Account of 
 
 the Receipts and Expenditures of all public Money 
 
 shall be published from time to time. 
 
 [§ 8.] No Title of Nobility shall be granted by 
 the United States : And no Person holding any 
 Office of Profit or Trust under them, shall, without 
 the Consent of the Congress, accept of any present, 
 Emolument, Office, or Title, of any kind whatever, 
 from any King, Prince, or foreign State. 
 
 Section. 10. [§ 1.] No State shall enter into any 
 Treaty, Alliance, or Confederation ; grant Letters of 
 Comp. with Marque and Reprisal ; coin Money ; emit Bills of 
 Arts, of Con- Credit ; make any Thing but gold and silver Coin 
 a Tender in payment of Debts ; pass any Bill of 
 Attainder, ex post facto Law, or Law impairing 
 the Obligation of Contracts, or grant any Title of 
 Nobility. 
 
 [§ 2.] No State shall, without the Consent of the 
 Congress, la}' any Imposts or Duties on Imports or 
 Exports, except what may be absolutely necessary 
 for executing its inspection Laws : and the net Pro- 
 duce of all Duties and Imposts, laid by any State 
 on Imports or Exports, shall be for the Use of the 
 Treasury of the United States ; and all such Laws 
 shall be subject to the Revision and Controul of the 
 Congress. 
 
 [§ 3.] No State shall, without the Consent of 
 Congress, lay any Duty of Tonnage, keep Troops, 
 or Ships of AVar in time of Peace, enter into any 
 Agreement or Compact with another State, or with 
 a foreign Power, or engage in War, unless actually 
 invaded, or in such imminent Danger as will not 
 admit of delay. 
 
1787] TEXT 253 
 
 ARTICLE. II. 
 
 Section, i. [§ 1.] The executive Power shall be JohnQuincy 
 vested in a President of the United States of Amer- ^^^™^' 
 ica. He shall hold his Office during the Term of powers of 
 four Years, and, together with the Vice President, ^lie execu- 
 chosen for the same Term, be elected, as follows ment expli- 
 
 [§ 2.] Each State shall appoint, in such Manner citly and em- 
 
 as the Legislature thereof may direct, a Number of poncentrated 
 
 Electors, equal to the whole Number of Senators in one person 
 
 and Representatives to which the State may be ^^'® ^^^"-J 
 
 . , , . ^ „ more exten- 
 
 entitled in the Congress : but no Senator or Repre- sive and 
 
 sentative, or Person holding an Office of Trust or complicated 
 Profit under the United States, shall be appointed t,he Leo-isla- 
 an Elector. ture." 
 
 CThe Electors shall meet in their respective 
 States, and vote by Ballot for two Persons, of 
 whom one at least shall not be an Inhabitant of the 
 same State with themselves. And they shall make 
 a List of all the Persons voted for, and of the Num- 
 ber of Votes for each ; which List they shall sign 
 and certifj', and transmit sealed to the Seat of the 
 Government of the United States, directed to the 
 President of the Senate. The President of the Sen- 
 ate shall, in the Presence of the Senate and House 
 of Representatives, open all the Certificates, and 
 the Votes shall then be counted. The Person hav- The failure 
 
 ing the greatest Number of Votes shall be the Pres- \^ specify 
 ^ <=> l)y whom 
 
 ident, if such Number be a Majority of the whole they should 
 Number of Electors appointed ; and if there be he counted 
 more than one who have such Majority, and have crisis of 1877. 
 an equal Number of Votes, then the House of Rep- 
 resentatives shall immediately chuse by Ballot one 
 of them for President; and if no Person have a 
 Majority, then from the five highest on the List the 
 said House shall in like Manner chuse the President. 
 But in chusing the President, the Votes shall be 
 taken by States, the Representation from each State 
 having one Vote ; A quorum for this Purpose shall 
 
254 FEDERAL CONSTITUTION [Ch. XVII 
 
 consist of a Member or Members from two thirds 
 See Amend- of the States, and a Majority of all the States shall 
 ment xii. ]^,g necessary to a Choice. In every Case, after 
 the Choice of the President, the Person having the 
 greatest Number of Votes of the Electors shall be 
 the Vice President. But if there should remain two 
 or more who have equal Votes, the Senate shall 
 chuse from them by Ballot the Vice President.] 
 
 [§ 3.] The Congress may determine the Time of 
 chusing the Electors, and the Day on which they 
 shall give their Votes ; which Day shall be the same 
 throughout the United States. 
 
 [§4.] No Person except a natural born Citizen, 
 or a Citizen of the United States at the time of the 
 Adoption of this Constitution, shall be eligible to 
 the Office of President ; neither shall any Person be 
 eligible to that Office who shall not have attained to 
 the Age of thirty- five Years, and been fourteen 
 Years a Resident within the United States. 
 
 [§ 5.] In Case of the Removal of the President 
 from Office, or of his Death, Resignation or Inabil- 
 ity to discharge the Powers and Duties of the said 
 Office, the Same shall devolve on the Vice President, 
 and the Congress may by Law provide for the Case 
 of Removal, Death, Resignation, or Inability, both 
 of the President and Vice President, declaring what 
 Officer shall then act as President, and such Officer 
 shall act accordingly, until the Disability be re- 
 moved, or a President shall be elected. 
 
 [§ 6.] The President shall, at stated Times, re- 
 ceive for his Services, a Compensation, which shall 
 neither be encreased nor diminished during the 
 Period for which he shall have been elected, and he 
 shall not receive within that Period any other Emol- 
 ument from the United States, or any of them. 
 
 [§ 7.] Before he enter on the Execution of his 
 Office, he shall take the following Oath or affirma- 
 tion : — 
 
 " I do solemnly swear (or affirm) that I will faith- 
 
1787] TEXT 255 
 
 fully execute the Office of President of the United 
 States, and will to the best of my Ability, preserve, 
 protect, and defend the Constitution of the United 
 States." 
 
 Section. 2. [§ 1.] The President shall be Com- The war- 
 mander in Chief of the Army and Navy of the "^^^y. °^ ^^^ 
 United States, and of the Militia of the several may involve 
 States, when called into the actual Service of the the country 
 United States ; he may require the Opinion, in out consent' 
 writing, of the principal Officer in each of the ex- of Congress, 
 ecutive Departments, upon any Subject relating to w^^^^^^^'^ 
 the Duties of their respective Offices, and he shall 
 have Power to grant Reprieves and Pardons for 
 Offences against the United States, except in Cases 
 of Impeachment. 
 
 [§ 2.] He shall have Power, by and with the 
 Advice and Consent of the Senate, to make Treaties, This power 
 provided two thirds of the Senators present concur ; ^^^^ ^^ck. to 
 and he shall nominate, and by and with the Advice the Teutonic 
 and Consent of the Senate, shall appoint Ambassa- ti'ibes when 
 
 tllG CVH- 
 
 dors, other public Ministers and Consuls, Judges of jQg" led 
 the supreme Court, and all other Officers of the tribes in 
 United States, whose Appointments are not herein ^^^^ *^ ^*^' 
 otherwise provided for, and which shall be estab- 
 lished by Law : but the Congress may by Law vest 
 the Appointment of such inferior Officers, as they 
 think proper, in the President alone, in the Courts 
 of Law, or in the Heads of Departments. 
 
 [§ 3.] The President shall have Power to fill up 
 all Vacancies that may happen during the Recess of 
 the Senate, by granting Commissions which shall 
 expire at the End of their next Session. 
 
 Section. 3. He shall from time to time give to The Presi- 
 the Congress Information of the State of the Union, gf^g is^kl'n 
 and recommend to their Consideration such Meas- to'the pro- 
 ures as he shall judge necessary and expedient; he ^^dure of 
 may, on extraordinary Occasions, convene both municating 
 Houses, or either of them, and in Case of Disagree- ^^*^ ^^^' 
 ment between them, with Respect to the Time of Bryce says 
 
256 FEDERAL CONSTITUTION [Ch. XVII 
 
 " The mes- Adjournment, he may adjourn them to such Time 
 dtfcusses^the ^^ ^® ^^^^^ think proper ; he shall receive Ambassa- 
 leading ques- dors and other public Ministers ; he shall take Care 
 tion of the ^^^^^ q^^ Laws be faithfully executed, and shall 
 But as no ' Commission all the Officers of the United States, 
 one of his SECTION. 4. The President, Vice President and 
 
 in either ^,11 civil Officers of the United States, shall be 
 House to ex- removed from Office on Impeachment for, and Con- 
 defend tliem miction of, Treason, Bribery, or other high Crimes 
 the message and Misdemeanors, 
 is a shot in 
 
 the air with- 
 out practical 
 result." 
 
 ARTICLE. III. 
 
 No federa- Section. 1. The judicial Power of the United 
 
 tion had ever States, shall be vested in one supreme Court, and. 
 ful nationai'^ ^"^ ^^*^^ inferior Courts as the Congress may from 
 Court. time to time ordain and establish. The Judges, 
 
 ^?™P^''^ both of the supreme and inferior Courts, shall hold 
 Confed. xx. their Offices during good Behaviour, and shall, at 
 Sect. 2. stated Times, receive for their Services, a Compen- 
 
 sation, which shall not be diminished during their 
 Continuance in Office. 
 
 Section. 2. [§ 1.] The judicial Power shall ex- 
 tend to all Cases, in Law and Equity, arising under 
 this Constitution, the Laws of the United States, 
 and Treaties made, or which shall be made, under 
 their Authority ; — to all Cases affecting Ambassa- 
 dors, other public Ministers and Consuls ; — to all 
 Cases of admiralty and maritime Jurisdiction ; — to 
 Controversies to which the United States shall be a 
 Party ; — to Controversies between two or more 
 States ; — between a State and Citizens of another 
 State ; — between Citizens of different States, — 
 between Citizens of the same State claiming Lands 
 under Grants of different States, and between a 
 State, or the Citizens thereof, and foreign States, 
 Citizens or Subjects. 
 
 [§ 2.] In all Cases affecting Ambassadors, other 
 
1787] TEXT 257 
 
 public Ministers and Consuls, and those in wliieh a 
 State shall be Party, the supreme Court shall have 
 original Jurisdiction. In all the other Cases before 
 mentioned, the supreme Court shall have appellate 
 Jurisdiction, both as to Law and Fact, with such 
 Exceptions, and under such Regulations as the Con- 
 gress shall make. 
 
 [§ 3.] The Trial of all Crimes, except in Cases Limited by 
 of Impeachment, shall be by Jury ; and such Trial ^^^^ Amend- 
 shall be held in the State where the said Crimes 
 shall have been committed ; but when not committed 
 within any State, the Trial shall be at such Place or 
 Places as the Congress may by Law have directed. 
 
 SECTioisr. 3. [§ 1.] Treason against the United 
 States, shall consist only in levying War against 
 them, or in adhering to their Enemies, giving them 
 Aid and Comfort. No Person shall be convicted of 
 Treason unless on the Testimony of two Witnesses 
 to the same overt Act, or on Confession in open 
 Court. 
 
 [§ 2.] The Congress shall have Power to declare 
 the Punishment of Treason, but no Attainder of 
 Treason shall work Corruption of Blood, or Forfei- 
 ture except during the Life of the Person attainted. 
 
 ARTICLE. IV. 
 
 Section. 1. .Full Faith and Credit shall be given 
 in each State to the public Acts, Records, and judi- 
 cial Proceedings of every other State. And the 
 Congress may by general Laws prescribe the Man- 
 ner in which such Acts, Records and Proceedings 
 shall be proved, and the Effect thereof. 
 
 Section 2. [§ 1.] The Citizens of each State 
 shall be entitled to all Privileges and Immunities of 
 Citizens in the several States. 
 
 [§ 2.] A Person charged in any State with ^i^j-j^g-g^j 
 Treason, Felony, or other Crime, who shall flee text from 
 
 17 
 
258 
 
 FEDERAL CONSTITUTION 
 
 [Ch. XVII 
 
 Articles of 
 Confedera- 
 tion, iv. ; 
 extended by 
 14tli Amend- 
 ment. 
 
 A cause of 
 violent con- 
 troversy 
 from 1831 to 
 1864; super- 
 seded by lotli 
 Amendment. 
 
 Kentucky, 
 Vermont, 
 Maine, West 
 Virginia so 
 constituted 
 by consent. 
 
 Federal 
 forces have 
 been repeat- 
 edly called in 
 to repress in- 
 surrections, 
 and also 
 at times of 
 strikes and 
 riots. 
 
 from Justice, and be found in another State, shall 
 on Demand of the executive Authority of the 
 State from which he fled, be delivered up, to be 
 removed to the State having Jurisdiction of the 
 Crime. 
 
 [§ 3.] CNo Person held to Service or Labour in 
 one State, under the Laws thereof, escaping into 
 another, shall, in Consequence of any Law or Reg- 
 ulation therein, be discharged from such Service or 
 Labour, but shall be delivered up on Claim of the 
 Party to whom such Service or Labour may be 
 duej 
 
 Section 3. [§ 1.] New States may be admitted 
 by the Congress into this Union ; but no new State 
 shall be formed or erected within the Jurisdiction of 
 any other State ; nor any State be formed by the 
 Junction of two or more States, or Parts of States, 
 without the Consent of the Legislatures of the 
 States concerned as well as of the Congress. 
 
 [§ 2.] The Congress shall have Power to dispose 
 of and make all needful Rules and Regulations re- 
 specting the Territory or other Property belonging 
 to the United States ; and nothing in this Constitu- 
 tion shall be so construed as to Prejudice any 
 Claims of the United States, or of any particular 
 State. 
 
 Section 4. The United States shall guarantee 
 to every State in this Union a Republican Form of 
 Government, and shall protect each of them against 
 Livasion ; and on Application of the Legislature, or 
 of the Executive (when the Legislature cannot be 
 convened) against domestic Violence. 
 
 ARTICLE. V. 
 
 The Congress, whenever two thirds of both 
 Houses shall deem it necessary, shall propose 
 Amendments to this Constitution, or, on the Ap- 
 plication of the Legislatures of two thirds of the 
 
1787] TEXT 259 
 
 several States, shall call a Convention for proposing 
 Amendments, which, in either Case, shall be valid 
 to all Intents and Purposes, as Part of this Consti- This method 
 tutiou, when ratified by the Legislatures of three of amending 
 fourths of the several States, or by Conventions in stitution 
 three fourths thereof, as the one or the other Mode has proved 
 of Ratification may be proposed by the Congress; Sm^f ou™^' 
 Provided [[that no Amendment which may be made of about 1700 
 prior to the Year One thousand eight hundred and Proposed 
 eight shall in any Manner affect the first and fourth have been 
 Clauses in the Ninth Section of the first Article ; ratified, 
 and] that no State, without its Consent, shall be 
 deprived of its equal Suffrage in the Senate. 
 
 ARTICLE. VI. 
 
 [§ 1.] All Debts contracted and Engagements 
 entered into, before the Adoption of this Constitu- 
 tion, shall be as valid against the United States 
 under this Constitution, as under the Confed- See 14th 
 eration. Amendment. 
 
 [§ 2.] This Constitution, and the Laws of the 
 United States which shall be made in Pursuance 
 thereof ; and all Treaties made, or which shall be 
 made, under the Authority of the L^nited States, 
 shall be the supreme Law of the Land ; and the a splendid 
 Judges in every State shall be bound thereby, any and powerful 
 Thing in the Constitution or Laws of any State to ^ ^^^^' 
 the Contrary notwithstanding. 
 
 [§ 3.] The Senators and Representatives before 
 mentioned, and the Members of the several State 
 Legislatures, and all executive and judicial Officers, 
 both of the United States and of the several States, 
 shall be bound by Oath or Affirmation, to support 
 this Constitution ; but no religious Test shall ever 
 be required as a Qualification to any Office or public 
 Trust under the United States. 
 
260 
 
 FEDERAL CONSTITUTION 
 
 [Ch. XVII 
 
 Technically 
 a breach of 
 the previous 
 Articles of 
 Confedera- 
 tion. 
 
 ARTICLE. VII. 
 
 The Ratification of the Conventions of nine States, 
 shall be sufficient for the Establishment of this Con- 
 stitution between the States so ratifying the Same. 
 
 Done in Convention by the Unanimous 
 [Note of the Consent of the States present the Seven- 
 drauglitsman as to teentli Day of September in the Year of 
 interlineations i n our Lord one thousand seven hundred and 
 the text of the man- Eighty seven and of the Independence of 
 useript.] the United States of America the Twelfth 
 
 Attest In Witness whereof We have hereunto 
 
 WilliamJackson. subscribed our names. 
 
 Secretary. Go WASHINGTON — 
 
 Presidt and deputy from Virginia. 
 
 Delaware. 
 
 ( GrEO : Read 
 I Gunning Bedford jun 
 ^ John Dickinson 
 I Richard B as sett 
 [^Jaco Broom 
 
 JSfew Hampshire. 
 
 f John Langdon ) 
 ( Nicholas Gilman ) 
 
 Massachusetts. 
 
 J Nathaniel Gorham 
 I Rupus King 
 
 Maryland. 
 
 r James McHenry 
 Dan of St. Thos. Jen- 
 
 North Carolina. 
 
 ( Wm. Blount 
 
 < Richd. Dobbs Spaight 
 
 (Hu Williamson 
 
 South Carolina 
 
 f J. RUTLEDGE 
 
 I Charles Cotesworth 
 
 \ PiNCKNEY 
 
 I Charles Pinckney 
 [Pierce Butler 
 
 IPER 
 
 I 
 
 [Danl Carroll 
 
 Virginia. 
 
 ( John Blair — 
 
 1 James Madison Jr. 
 
 Georgia. 
 
 ( William Few 
 (Abr Baldwin 
 
 Connecticut. 
 
 (Wm. Saml. Johnson 
 i Roger Sherman 
 
 Neto York. 
 Alexander Hamilton 
 
1789-1791] TEXT 
 
 New Jersey. Pennsylvania ^ 
 
 261 
 
 r WiL : Livingston 
 J David Brearley 
 I Wm : Paterson . 
 [ JoNA : Dayton 
 
 B Franklin 
 Thomas Mipflin 
 EoBT. Morris 
 
 , Geo. Clymer 
 
 « Thos. Fitz Simons 
 Jared Ingersoll 
 James Wilson. 
 Gouv Morris 
 
 AMENDMENTS. 
 
 [ARTICLE I.] 
 
 Congress shall make no law i-especting an estab- 
 lishment of religion, or prohibiting the free exercise 
 thereof ; or abridging the freedom of speech, or of 
 the press ; or the right of the people peaceably to 
 assemble, and to petition the Government for a re- The first ten 
 
 dress of grievances. amendments 
 
 were adopted 
 ^.^^^^^^ -^^ n at one time 
 
 [ARTICLE II.] (Sept. 25, 
 
 1 . -, T.-.T,. 1 • ^ XI 1789): and 
 
 A well regulated Militia, being necessary to the declared in 
 
 security of a free State, the right of the people to force Dec. 15, 
 keep and bear Arms, shall not be infringed. satisfied the^ 
 
 popular de- 
 [ARTICLE III.] mandfora 
 
 *- ^ Bill of 
 
 No Soldier shall, in time of peace be quartered Eights, See 
 
 in any house, without the consent of the Owner, nor p?^i^^^° 
 in time of war, but in a manner to be prescribed by xi.'^ 
 law. 
 
 [ARTICLE IV.] 
 
 The right of the people to be secure in their per- 
 sons, houses, papers, and effects, against unreason- 
 able searches and seizures, shall not be violated, 
 and no Warrants shall issue, but upon probable 
 cause, supported by Oath or affirmation, and partic- 
 ularly describing the place to be searched, and the 
 persons or things to be seized. 
 
262 
 
 FEDERAL CONSTITUTION 
 
 [Ch. XVII 
 
 Amendments 
 V. to xi. re- 
 state English 
 Common 
 Law, and 
 Magna 
 Charta. 
 
 [ARTICLE v.] 
 
 No person shall be held to answer for a capital, 
 or otherwise infamous crime, unless on a present- 
 ment or indictment of a Grand Jury, except in 
 cases arising in the land or naval forces, or in the 
 Militia, when in actual service in time of War or 
 public danger ; nor shall any person be subject for 
 the same offence to be twice put in jeopardy of life 
 or limb; nor shall be compelled in any criminal 
 case to be a witness against himself, nor be deprived 
 of life, liberty, or property, without due process of 
 law ; nor shall private property be taken for public 
 use, without just compensation. 
 
 [ARTICLE VL] 
 
 In all criminal prosecutions the accused shall 
 enjoy the right to a speedy and public trial, by an 
 impartial jury of the State and disti'ict wherein the 
 crime shall have been committed, which district 
 shall have been previously ascertained by law, and 
 to be informed of the nature and cause of the accu- 
 sation ; to be confronted with the witnesses against 
 him ; to have compulsory process for obtaining wit- 
 nesses in his favour, and to have the Assistance of 
 Counsel for his defence. 
 
 [ARTICLE VII.] 
 
 In suits at common law, where the value in con- 
 troversy shall exceed twenty dollars, the right of 
 trial by jury shall be preserved, and no fact tried 
 by a jury shall be otherwise re-examined in any 
 Court of the United States, than according to the 
 rules of the common law. 
 
 [ARTICLE VIII.] 
 
 Excessive bail shall not be required, nor excessive 
 fines imposed, nor cruel and unusual punishments 
 inflicted. 
 
1789-1791] TEXT 263 
 
 [ARTICLE IX.] 
 
 The enumeration in the Constitution, of certain 
 rights, shall not be construed to deny or disparage 
 others retained by the people. 
 
 [ARTICLE X.] 
 
 The powers not delegated to the United States by 
 the Constitution, nor prohibited by it to the States, 
 are reserved to the States respectively or to the 
 people. 
 
 [ARTICLE XL] 
 
 The Judicial power of the United States shall not Proposed 
 be construed to extend to any suit in law or equity, 2794 ^'g. 
 commenced or prosecuted against one of the United dared in 
 States by Citizens of another State, or by Citizens !2gn® '^^^' ^' 
 or Subjects of any Foreign State. 
 
 [ARTICLE XII.] 
 
 The Electors shall meet in their respective states, Proposed 
 and vote by ballot for President and Vice-President, T^gciai^'d n 
 one of whom, at least, shall not be an inhabitant of force Sept. 
 the same state with themselves ; they shall name in ^^' ■'^^^'^• 
 their ballots the person voted for as President, and rp^ prevent 
 in distinct ballots the person voted for as Vice- ties and 
 President, and they shall make distinct lists of all dead-locks, 
 persons voted for as President, and of all persons 
 voted for as Vice-President, and of the number of 
 votes for each, which lists they shall sign and cer- 
 tify, and transmit sealed to the seat of the govern- 
 ment of the United States, directed to the President 
 of the Senate ; — The President of the Senate shall, 
 in the presence of the Senate and House of Repre- 
 sentatives, open all the certificates and the votes 
 shall then be counted ; — The person having the 
 greatest number of votes for President, shall be 
 the President, if such number be a majority of the 
 
264 
 
 FEDERAL CONSTITUTION 
 
 [Ch. XVII 
 
 In the origi- 
 nal manu- 
 scripts these 
 twelve 
 
 Amendments 
 have no 
 numbers. 
 Amendments 
 xiii.-xv. 
 appear in 
 Ch. xxi. 
 below. 
 
 whole number of Electors appointed ; and if no 
 person have such majority, then from the persons 
 having the highest numbers not exceeding three on 
 the list of those voted for as President, the House 
 of Representatives shall choose immediately, by 
 ballot, the president. But in choosing the Presi- 
 dent, the votes shall be taken by states, the repre- 
 sentation from each state having one vote ; a 
 quorum for this purpose shall consist of a member 
 or members from two-thirds of the states, and a 
 majority of all the states shall be necessaiy to a 
 choice. And if the House of Representatives shall 
 not choose a President whenever the right of choice 
 shall devolve upon them, before the fourth day of 
 March next following, then tlie Vice-President shall 
 act as President, as in the case of the death or other 
 constitutional disability of the President. — The per- 
 son having the greatest number of votes as Vice- 
 President, shall be the Vice-President, if such number 
 be a majority of the whole number of Electors ap- 
 pointed, and if no person have a majority, then 
 from the two highest numbers on the list, the Senate 
 shall choose the Vice-President; a quoi'um for the 
 purpose shall consist of two-thirds of the whole 
 number of Senators, and a majority of the whole 
 number shall be necessary to a choice. But no 
 person constitutionally ineligible to the office of 
 President shall be eligible to that of Vice-President 
 of the United States. 
 
 CONTEMPORARY EXPOSITION 
 
 FRANKIilN (1787) 
 
 Monday, September 17. — In Convention. — The engrossed 
 Constitution being read. Doctor Franklin rose with a speech in 
 his hand, which he had reduced to writing for his own conve- 
 nience, and which Mr. Wilson read in the words following : — 
 
 " Mr. President: I confess that there are several parts of 
 this Constitution which I do not at present approve, but I am 
 
1787] CONTEMPORARY EXPOSITION 265 
 
 not sure I shall never approve them. For having lived long, 
 I have experienced many instances of being obliged by better 
 information, or fuller consideration, to change opinions even on 
 important subjects which I once thought right, but found to be 
 otherwise. It is therefore that, the older I grow, the more apt 
 I am to doubt my own judgment, and to pay more respect to 
 the judgment of others. Most men, indeed, as well as most 
 sects in religion, think themselves in possession of all truth, 
 and that wherever others differ from them it is so far error. 
 Steele, a Protestant, in a dedication, tells the Pope, that the only 
 difference between our churches, in their opinions of the cer- 
 tainty of their doctrines, is, ' the Church of Rome is infallible, 
 and the Church of England is never in the wrong.' But though 
 many private persons think almost as highly of their own infal- 
 libility as of that of their sect, few express it so naturally as a 
 certain French ladj^ who, in a dispute with her sister, said, ' I 
 don't know how it happens, sister, but I meet with nobody but 
 myself that is always in the right — il n'y a que moi a toujours 
 raison. ' 
 
 "In these sentiments, sir, I agree to this Constitution, with 
 all its faults, if they are such ; because I think a General Grov- 
 ernment necessary for us, and there is no form of government 
 but what may be a blessing to the people if well administered ; 
 and believe further, that this is likely to be well administered 
 for a course of years, and can only end in despotism, as other 
 forms have done before it, when the people shall become so cor- 
 rupted as to need despotic government, being incapable of any 
 other. I doubt, too, whether any other Convention we can ob- 
 tain may be able to make a better Constitution, for when you 
 assemble a number of men to have the advantage of their joint 
 wisdom, you inevitably assemble with those men all their preju- 
 dices, their passions, their errors of opinion, their local inter- 
 ests, and their selfish views. From such an assembly can a 
 perfect production be expected? It therefore astonishes me, 
 sii', to find this system approaching so near to perfection as it 
 does ; and I think it will astonish our enemies, who are waiting 
 with confidence to hear that our councils are confounded, like 
 those of the builders of Babel ; and that our States are on the 
 point of separation, only to meet hereafter for the purpose of 
 
266 FEDERAL CONSTITUTION [Ch. XVII 
 
 cutting one another's throats. Thus I consent, sir, to this Con- 
 stitution, because I expect no better, and because I am not sure 
 that it is not the best. The opinions I have had of its errors 
 I sacrifice to the public good. I have never whispered a syl- 
 lable of them abroad. Within these walls they were born 
 and here they shall die. If every one of us, in returning to 
 our constituents, were to report the objections he has had to it, 
 and endeavour to gain partizans in support of them, we might 
 prevent its being generally received, and thereby lose all the 
 salutary effects and great advantages resulting naturally in our 
 favour among foreign nations as well as among ourselves, from 
 our real or apparent unanimity. Much of the strength and 
 efficiency of any government, in procuring and securing happi- 
 ness to the people, depends on opinion — on the general opinion 
 of the goodness of the government as well as of the wisdom 
 and integrity of its governors. I hope, therefore, that for our 
 own sakes, as a part of the people, and for the sake of pos- 
 terity, we shall act heartily and unanimously in recommending 
 this Constitution (if approved by Congress and confirmed by 
 the Conventions) wherever our influence may extend, and turn 
 our future thoughts and endeavours to the means of having it 
 well administered. 
 
 " On the whole, sir, I cannot help expressing a wish that every 
 member of the Convention, who may still have objections to it, 
 would, with me, on this occasion doubt a little of his own 
 infallibility, and, to make manifest our unanimity, put his 
 name to this instrument." 
 
 He then moved that the Constitution be signed by the mem- 
 bers, and offered the following as a convenient form, viz. ; 
 *' Done in Convention by the unanimous consent of the States 
 present, the seventeenth of September, &c. In '^\atness where- 
 of we have hereunto subscribed our names." This ambiguous 
 form had been drawn up by Mr. Gouverneur Morris, in order to 
 gain the dissenting members, and put into the hands of Doctor 
 Pranklin that it might have the better chance of success. . . . 
 
 The Constitution being signed by all the members except Mr. 
 Randolph, Mr. Mason and Mr. Gerry, who declined giving it 
 the sanction of their names, the Convention dissolved itself by 
 an adjournment sine die. 
 
1787] CONTEMPORARY EXPOSITION 267 
 
 Whilst the last members were signing, Doctor Franklin, look- 
 ing towards the President's chair, at the back of which a rising 
 sun happened to be painted, observed to a few members near 
 him that painters had found it difficult to distinguish, in their 
 art, a rising, from a setting, sun. I have, said he, often 
 and often, in the course of the session, and the vicissitudes of 
 my hopes and fears as to its issue, looked at that behind the 
 President, without being able to tell whether it was rising or 
 setting ; but now, at length, I have the happiness to know, that 
 it is a rising, and not a setting, sun. 
 
 Benjamin Franklin in Henry D. Gilpin's Madison Papers. III. 1596-1624. 
 MASON (1787). 
 
 There is no declaration of rights ... In the House of 
 Representatives there is not the substance, but the shadow 
 only of representation. , . . The Senate have the power of 
 altering all money-bills, and of originating appropriations of 
 money . . . although they are not the representatives of the 
 people. ... 
 
 The judiciary of the United States is so constructed and 
 extended as to absorb and destroy the judiciaries of the several 
 States. . . . The President of the United States has no con- 
 stitutional council ; he will therefore be unsupported by proper 
 information and advice. . . . 
 
 This government will commence in a moderate aristocracy ; 
 it is at present impossible to foresee whether it will in its 
 operation produce a monarchy or a corrupt oppressive aris- 
 tocracy ; it will most probably vibrate some years between the 
 two, and then terminate in the one or the other. 
 
 George Mason, Address to the Citizens of Virginia, in P. L. Ford, Pam- 
 phlets on the Constitution. 329, 332. 
 
 THE FEDERALIST (3787) 
 
 If the new Constitution be examined with accuracy and can- 
 dour, it will be found that the change which it proposes consists 
 much less in the addition of New Powers to the Union, than 
 in the invigoration of its Original Powers. The regulation of 
 commerce, it is true, is a new power; but that seems to be 
 
268 FEDERAL CONSTITUTION [Ch. XVII 
 
 an addition which few oppose, and from which no apprehen- 
 sions are entertained. The powers relating to war and peace, 
 armies and fleets, treaties and finances, with the other more 
 considerable powers, are all vested in the existing Congress by 
 the articles of Confederation. The proposed change does not 
 enlarge these powers ; it only substitutes a more effectual mode 
 of administrating them. The change relating to taxation may 
 be regarded as the most important; and yet the present Con- 
 gress have as complete authority to Require of the States 
 indefinite supplies of money for the common defence and 
 general welfare, as the future congress will have to require 
 them of individual citizens ; and the latter will be no more 
 bound than the States themselves have been, to pay the quotas 
 respectively taxed on them. Had the States complied punc- 
 tually with the articles of Confederation, or could their com- 
 pliance have been enforced by as peaceable means as may be 
 used with success towards single persons, our past experience 
 is very far from countenancing an opinion, that the State gov- 
 ernments would have lost their constitutional powers, and have 
 gradually undergone an entire consolidation. To maintain that 
 such an event would have ensued, would be to say at once, that 
 the existence of the State governments is incompatible with 
 any system whatever that accomplishes the essential purposes 
 of the Union. 
 
 Alexander Hamilton in The Federalist. No. xlv. 291. 
 
 HAMILTON (1787) 
 
 The new Constitution has in favour of its success these cir- 
 cumstances. A very great weight of influence of the persons 
 who framed it, particularly in the universal popularity of 
 General Washington. The good- will of the commercial in- 
 terest throughout the States, which will give all its efforts to 
 the establishment of a government capable of regulating, pro- 
 tecting, and extending the commerce of the Union. The 
 good -will of most men of property in the several States, who 
 wish a government of the Union able to protect them against 
 domestic violence, and the depredations which the democratic 
 spirit is apt to make on property, and who are besides anxious 
 
1787] CONTEMPORARY EXPOSITION 269 
 
 for the respectability of tlie nation. The hopes of the credi- 
 tors of the United States, that a general government possess- 
 ing the means of doing it, will pay the debt of the Union. A 
 strong belief in the people at large of the insufficiency of the 
 present Confederation to preserve the existence of the Union, 
 and of the necessity of the Union to their safety and pros- 
 perity; of course, a strong desire of a change, and a pre- 
 disposition to receive well the propositions of the convention. 
 
 Against its success is to be put the dissent of two or three 
 important men in the convention, who will think their charac- 
 ters pledged to defeat the plan ; the influence of many incon- 
 siderable men in possession of considerable offices under the 
 State governments, who will fear a diminution of their conse- 
 quence, power, and emolument, by the establishment of the 
 general government, and who can hope for nothing there ; the 
 influence of some considerable men in office, possessed of talents 
 and popularity, who, partly from the same motives, and partly 
 from a desire of playing a part in a convulsion for their own 
 aggrandizement, will oppose the quiet adoption of the new 
 government (some considerable men out of office, from motives 
 of ambition, may be disposed to act the same part). Add to 
 these causes the disinclination of the people to taxes, and of 
 course to a strong government ; the opposition of all men much 
 in debt, who will not wish to see a government established, one 
 object of which is to restrain the means of cheating creditors ; 
 the democratical jealousy of the people, which may be alarmed 
 at the appearance of institutions that may seem calculated to 
 place the power of the community in few hands, and to raise 
 a few individuals to stations of great pre-eminence ; and the 
 influence of some foreign powers, who, from different motives, 
 will not wish to see an energetic government established 
 throughout the States. 
 
 Alexander Hamilton, Works. I. 400-402. 
 
 WASHINGTON (17S7) 
 
 To Patrick Henry. 
 
 Mount Vernon, 24, September, 1787. 
 Dear Sir, — In the first moment after my return, I take 
 the liberty of sending you a copy of the constitution, which 
 
270 FEDERAL CONSTITUTION [Ch. XVH 
 
 the federal convention has submitted to the people of these 
 States. I accompany it with no observations. Your own 
 judgment will at once discover the good and the exceptionable 
 parts of it ; and your experience of the difficulties, which 
 have ever arisen when attempts have been made to reconcile 
 such variety of interests and local prejudices, as pervade the 
 several States, will render explanation unnecessary. I wish 
 the constitution, which is offered, had been made more per- 
 fect ; but I sincerely believe it is the best that could be 
 obtained at this time. And, as a constitutional door is 
 opened for amendment hereafter, the adoption of it, under 
 the present circumstances of the Union, is in my opinion 
 desirable. 
 
 From a variety of concurring accounts it appears to me, that 
 the political concerns of this country are in a manner suspended 
 by a thread, and that the convention has been looked up to, by 
 the reflecting part of the community, with a solicitude which is 
 hardly to be conceived ; and, if nothing had been agreed on by 
 that body, anarchy would soon have ensued, the seeds being 
 deeply sown in every soil. 
 
 George Washington, Works. XI. 164, 165. 
 
 WASHINGTON (178S) 
 
 To THE Marquis de Lafayette. 
 
 Mount Vernon, February 7, 1788. 
 My Dear Marquis, ... As to my sentiments with re- 
 spect to the merits of the new constitution, I will disclose 
 them without reserve, (although by passing through the post- 
 office they should become known to all the world,) for in truth 
 I have nothing to conceal on that subject. It appears to me, 
 then, little short of a miracle, that the delegates from so many 
 different States, (which States you know are also different from 
 each other,) in their manners, circumstances, and prejudices, 
 should unite in forming a system of national government, so 
 little liable to well-founded objections. Nor am I yet such an 
 enthusiastic, partial, or undiscriminating admirer of it, as not 
 to perceive it is tinctured with some real (though not radical) 
 defects, . , , With regard to the two great points (the pivots 
 
1788] CONTEMPORARY EXPOSITION 271 
 
 upon which the whole machiue must move) , my creed is simply, 
 1st. That the general government is not invested with more 
 powers, than are indispensably necessary to perform the func- 
 tions of a good government ; and consequently that no objec- 
 tion ought to be made against the quantity of power delegated 
 to it. 
 
 2dly. That these powers . , . are so distributed among the 
 legislative, executive, and judicial branches into which the gen- 
 eral government is arranged, that it can never be in danger of 
 degenerating into a monarchy, an oligarchy, an aristocracy, or 
 any other despotic or oppressive form, so long as there shall 
 remain any virtue in the body of the people. . . . 
 
 George Washington, Works. XL 218, 219. 
 
 DICKINSON (1788) 
 
 Some of our fellow -citizens have ventured to predict the 
 future of United America, if the system proposed to us, shall 
 be adopted. 
 
 Though every branch of the constitution and government is 
 to be popular, and guarded by the strongest provisions that 
 until this day have occurred to mankind, yet the system will 
 end, they say, in the oppressions of a monarchy, or aristocracy 
 by the federal servants or some of them. . . . 
 
 The proposed confederation offers to us a system of diversi- 
 fied representation in the legislative, executive, and judicial 
 departments as essentially necessary to the good government 
 of an extensive republican empire. Every argument to recom- 
 mend it, receives new force, by contemplating events that must 
 take place. The number of states in America will increase. 
 If not united to the present, the consequences are evident; if 
 united it must be by a plan that will communicate equal liberty 
 and assure just protection to them. 
 
 John Dickinson, in P. L. Ford's Pmyiphlets on the Constitution. 195, 204. 
 
 COXE (1788) 
 
 The people will remain, under the proposed constitution, the 
 fountain of power and public honour. The President, the Sen- 
 ate, and the House of Kepresentatives, will be the channels 
 
272 FEDERAL CONSTITUTION [Ch. XVn 
 
 through which the stream will flow — but it will flow from the 
 people, and from them only. 
 
 Every office, religious, civil and military will be either their 
 immediate gift or it will come from them through the hands of 
 their servants. 
 
 And this, as observed before, will be guaranteed to them 
 under the state constitution which they respectively approve ; 
 for they cannot be royal forms, cannot be aristocratical, but 
 must be republican. . . . 
 
 There is no spirit of arrogance in the new federal constitu- 
 tion. It addresses you with becoming modesty, admitting that 
 it may contain errors. Let us give it a trial ; and when expe- 
 rience has taught its mistakes, the people, whom it preserves 
 absolutely all powerful, can reform and amend them. That I 
 may be perfectly understood, I will acknowledge its acceptance 
 by all the states, without delay is the second wish of my heart. 
 The first is, that our country may be virtuous and free. 
 
 Tench Coxe, in P. L. Ford's Pamphlets on the Constitution. 147, 153, 154. 
 
 JEFFERSON (1821) 
 
 This Convention met at Philadelphia on the 25th of May, '87. 
 It sat with closed doors, and kept all its proceedings secret, until 
 its dissolution on the 17th of September, when the results of its 
 labours were published all together. I received a copy, earl}^ in 
 November, and read and contemplated its provisions with great 
 satisfaction. As not a member of the Convention, however, nor 
 probably a single citizen of the Union, had approved it in all its 
 parts, so I, too, found articles which I thought objectionable. 
 The absence of express declarations ensuring freedom of re- 
 ligion, freedom of the press, freedom of the person under the 
 uninterrupted protection of the Habeas corpus, and trial by 
 jury in Civil as well as in Criminal cases, excited my jealousy; 
 and the re-eligibility of the President for life, I quite disap- 
 proved. I expressed freely, in letters to my friends, and most 
 particularly to Mr. Madison and General Washington, my ap- 
 probations and objections. How the good should be secured 
 and the ill brought to rights was the difficulty. To refer it 
 back to a new Convention might endanger the loss of the 
 whole. My first idea was, that the nine States first acting, 
 
1788-1833] CRITICAL COMMENT 273 
 
 should accept it unconditionally, and thus secure what in it 
 was good, and that the four last should accept on the previous 
 condition, that certain amendments should be agreed to ; but a 
 better course was devised, of accepting the whole, and trusting 
 that the good sense and honest intentions of our citizens, would 
 make the alterations which should be deemed necessary. 
 
 Thomas Jefferson, Works. I. 79. 
 
 CRITICAL COMMENT 
 
 WEBSTER (1833) 
 
 The Constitution of the United States, founded in or on the 
 consent of the people, may be said to rest on compact or con- 
 sent ; but it is not itself the compact, but its result. When the 
 people agree to erect a government, and actually erect it, the 
 thing is done, and the agreement is at an end. The compact 
 is executed, and the end designed by it attained. Henceforth, 
 the fruit of the agreement exists, but the agreement itself is 
 merged in its own accomplishment ; since there can be no longer 
 a subsisting agreement or compact to form a constitution or 
 government, after that constitution or government has been 
 actually formed and established. . . . 
 
 The Constitution, Sir, regards itself as perpetual and immor- 
 tal. It seeks to establish a union among the people of the 
 States, which shall last through all time. . . . It is the associ- 
 ation of the people, under a constitution of government, uniting 
 their power, joining together their highest interests, cementing 
 their present enjoyments, and blending, in one indivisible mass, 
 all their hopes for the future. Whatsoever is steadfast in just 
 political principles ; whatsoever is permanent in the structure 
 of human society ; whatsoever there is which can derive an 
 enduring character from being founded on deep-laid principles 
 of constitutional liberty, and on the broad foundations of the 
 public will, — all these unite to entitle this instrument to be 
 regarded as a permanent constitution of government. 
 
 Daniel Webster, Works. III. 468, 478. 
 18 
 
274 FEDERAL CONSTITUTION [Ch. XVII 
 
 STOET (1833) 
 
 In oar future commentaries upon the constitution we shall 
 treat it, then, as it is denominated in the instrument itself, as 
 a constitution of government, ordained and established by the 
 people of the United States for themselves and their posterity. 
 They have declared it the supreme law of the land. They have 
 made it a limited government. They have defined its authority. 
 They have restrained it to the exercise of certain powers, and 
 reserved all others to the states or to the people. It is a popu- 
 lar government. Those, who administer it, are responsible to 
 the people. It is as popular, and just as much emanating from 
 the people, as the state governments. It is created for one pur- 
 pose ; the state governments for another. It may be altered, 
 and amended, and abolished at the will of the people. In short, 
 it was made by the people, made for the people, and is respon- 
 sible to the people. . . . 
 
 The constitution of the United States is to receive a reason- 
 able interpretation of its language, and its powers, keeping in 
 view the objects and purposes, for which those powers were 
 conferred. By a reasonable interpretation, we mean, that in 
 case the words are susceptible of two different senses, the one 
 strict, the other more enlarged, that should be adopted, which 
 is most consonant with the apparent objects and intent of the 
 constitution ; that which will give it efficacy and force, as a 
 government, rather than that, which will impair its operations, 
 and reduce it to a state of imbecility. Of course we do not 
 mean, that the words for this purpose are to be strained beyond 
 their common and natural sense ; but keeping within that limit, 
 the exposition is to have a fair and just latitude, so as on the 
 one hand to avoid obvious mischief, and on the other hand to 
 promote the public good. . . . 
 
 But a constitution of government, founded by the people for 
 themselves and their posterity, and for objects of the most 
 momentous nature, for perpetual union, for the establishment 
 of justice, for the general welfare, and for a perpetuation of the 
 blessings of liberty, necessarily requires, that every interpre- 
 tation of its powers should have a constant reference to these 
 objects. No interpretation of the words, in which those pow- 
 
1833-1878] CRITICAL COMMENT 275 
 
 ers are granted, can be a sound one, which narrows down their 
 ordinary import, so as to defeat those objects. 
 
 Joseph Story, Commentaries on the Constitution of the United States. 134, 
 139, 141. 
 
 GLADSTONE (1878) 
 
 The students of the future, in this department [political 
 philosophy], will have much to say in the way of comparison 
 between American and British institutions. The relationship 
 between these two is unique in history. It is always interest- 
 ing to trace and to compare Constitutions, as it is to compare 
 languages ; especially in such instances as those of the Greek 
 States and the Italian Republics, or the diversified forms of 
 the feudal system in the different countries of Europe. But 
 there is no parallel in all the records of the world to the case 
 of that prolific British mother, who has sent forth her innu- 
 merable children over all the earth to be the founders of half- 
 a-dozen empires. She, with her progeny, may almost claim 
 to constitute a kind of Universal Church in politics. But, 
 among these children, there is one whose place in the world's 
 eyes and in history is superlative : it is the American Repub- 
 lic. She is the oldest born. She has, taking the capacity of 
 her land into view as well as its mere measurement, a natural 
 base for the greatest continuous empire ever established by 
 man. 
 
 . . . And for the political student all over the world, it 
 will be beyond anything curious as well as useful to examine, 
 with what diversities, as well as what resemblances, of ap- 
 paratus, the two greater branches of a race born to command 
 have been minded, or induced, or constrained to work out, in 
 their sea-severed seats, their political destinies according to 
 the respective laws appointed for them. . . . 
 
 There were, however, the strongest reasons why America 
 could not grow into a reflection or repetition of England. 
 Passing from a narrow island to a continent almost without 
 bounds, the colonists at once, and vitally, altered their condi- 
 tions of thought, as well as of existence, in relation to the 
 most important and most operative of all social facts, the 
 possession of the soil. . . . 
 
276 FEDERAL CONSTITUTION [Ch. XVII 
 
 It is to the honour of the British monarchy that, upon the 
 whole, it frankly recognized the facts, and did not pedantically 
 endeavour to constrain by artificial and alien limitations the 
 growth of the infant States. It is a thing to be remembered 
 that the accusations of the colonies in 1776 were entirely 
 levelled at the King actually on the throne, and that a gen- 
 eral acquittal was thus given by them to every preceding 
 reign. Their infancy had been upon the whole what their 
 manhood was to be, self-governed and republican. Their Rev- 
 olution, as we call it, was like ours in the main, a vindication 
 of liberties inherited and possessed. It was a Conservative 
 revolution ; and the happy result was that, notwithstanding the 
 sharpness of the collision with the mother-country, and with 
 domestic loyalism, the Thirteen Colonies made provision for their 
 future in conformity, as to all that determined life and manners, 
 with the recollections of their past. The two constitutions of 
 the two countries express indeed rather the differences than the 
 resemblances of the nations. The one is a thing grown, the 
 other a thing made; the one a praxis, the other a poiesis; 
 the one the offspring of tendency and indeterminate time, the 
 other of choice and of an epoch. But, as the British Constitution 
 is the most subtle organism which has proceeded from the 
 womb and the long gestation of progressive history, so the 
 American Constitution is, so far as I can see, the most wonder- 
 ful work ever struck off at a given time by the brain and pur- 
 pose of man. It has had a century of trial, under the pressure 
 of exigencies caused by an expansion unexampled in point of 
 rapidity and range : and its exemption from formal change, 
 though not entire, has certainly proved the sagacity of the con- 
 structors, and the stubborn strength of the fabric. 
 
 William Ewart Gladstone, Kin Beyond Sea in Gleanings of Past 
 Years. I. 204-212. 
 
 COOLET (1880) 
 
 In America the leading principle of constitutional liberty has 
 from the first been, that the sovereignty reposed in the people ; 
 and as the people could not in their collective capacity exercise 
 the powers of government, a written constitution was by general 
 consent agreed upon in each of the States. These constitutions 
 
1878-1880] CRITICAL COMMENT 277 
 
 create departments for the exercise of sovereign powers ; pre- 
 scribe the extent of the exercise, and the methods, and in some 
 particulars forbid that certain powers which would be within 
 the compass of sovereignty shall be exercised at all. , . . The 
 constitution, moreover, is in the nature of a covenant of the 
 sovereign people with each individual thereof, under which, 
 while they intrust the powers of government to political agencies, 
 they also divest themselves of the sovereign power of making 
 changes in the fundamental laws except by the method in the 
 constitution agreed upon. The Constitution of the United 
 States creates similar governmental trusts and imposes similar 
 restrictions. . . . 
 
 The government created by the Constitution is one of limited 
 and enumerated powers, and the Constitution is the measure and 
 the test of the powers conferred. Whatever is not conferred is 
 withheld, and belongs to the several States or to the people 
 thereof. As a constitutional principle this must result from a 
 consideration of the circumstances under which the Constitution 
 was formed. The States were in existence before, and possessed 
 and exercised nearly all the powers of sovereignty. The Union 
 was in existence, but the Congress which represented it possessed 
 a few powers only conceded to it by the States, and these cir- 
 cumscribed and hampered in a manner to render them of little 
 value. . . . But it was not within the intent of those who formed 
 the Constitution to revolutionize the States, to overturn the pre- 
 sumptions that supported their authority, or to create a new 
 government with uncertain and undefined powers. The purpose, 
 on the contrary, was to perpetuate the States in their integrity, 
 and to strengthen the union in order that they might be per- 
 petuated. . . . By Art. VI. it is declared that " This Constitution 
 and the laws of the United States which shall be made in pur- 
 suance thereof, and all treaties made, or which shall be made, 
 under the authority of the United States, shall be the supreme 
 law of the land ; and the judges in every State shall be bound 
 thereby, anything in the Constitution or laws of any State to 
 the contrary notwithstanding." Upon this it is to be observed : — 
 
 (1) The Congress of the United States derives its power to 
 legislate from the Constitution, which is the measui-e of its au- 
 thority ; and any enactment of Congress which is opposed to 
 
278 FEDERAL CONSTITUTION [Ch. XVII 
 
 its provisions, or is not within the grant of powers made by it, 
 is unconstitutional, and therefore no law, and obligatory upon 
 no one. 
 
 (2) As between a law of the United States made in pursuance 
 of the Constitution and a treaty made under the authority of the 
 United States, if the two in any of their provisions are found 
 to conflict, the one last in point of time must control. For the 
 one as well as the other is an act of sovereignty, differing only 
 in form and in the organ or age nc}'' through which the sovereign 
 will is declared. Each alike is the law of the land in its adop- 
 tion, and the last law must repeal everything that is of no 
 higher authority which is found to come in conflict with it. 
 A treaty may therefore supersede a prior act of Congress ; and, 
 on the other hand, an act of Congress may supersede a prior 
 treaty. 
 
 (3) A State law must yield to the supreme law, whether ex- 
 pressed in the Constitution of the United States, or in any of its 
 laws or treaties, so far as they come in collision, and whether 
 it be a law in existence when the " supreme law" was adopted 
 or enacted afterward. The same is true of any provision in the 
 constitution of any State which is found to be repugnant to the 
 Constitution of the Union. And not only must " the judges in 
 every State " be bound by such supreme law, but so must the 
 State itself, and every official in all its departments, and every 
 citizen. 
 
 (4) The Constitution itself never yields to treaty or enact- 
 ment; it neither changes with time, nor does it in theory bend 
 to the force of circumstances. It may be amended according to 
 its own permission ; but while it stands it is "a law for rulers 
 and people, equally in war and in peace, and covers with the 
 shield of its protection all classes of men, at all times and under 
 all circumstances." Its principles cannot, therefore, be set aside 
 in order to meet the supposed necessities of great crises. 
 
 Thomas M. Coolet, Constitutional Law. 22-32. 
 
 J. C. HURD (1881) 
 
 The Revolutionary or Continental Congress, July 4, 1776, 
 declared the "United Colonies" to be free and independent 
 States, " in the name and by the authority of the good people of 
 
1880-1889] CRITICAL COMMENT 279 
 
 these colonies." But the delegates to that Congress, before as 
 well as after the establishment of State governments, had re- 
 ceived their appointment from electoral agencies which, in their 
 connection with the people whom they claimed to represent, 
 were very different in the various colonies. 
 
 In the government, under the Articles of Confederation, the 
 united political people of the States exercised their power for 
 general national purposes, by the intervention of the same 
 organs by which they exercised power for local or State 
 purposes. 
 
 In the government, under the Constitution, the same political 
 people, without a revolution, i. e., without any shifting of sove- 
 reign power, exercised their powers for national purposes by 
 the immediate action, through special representatives, of the 
 political people of each State. 
 
 The possession by this "people of the United States" of 
 the powers exerted by a general government, co-existent with 
 the possession by the same people of other powers, exerted by the 
 State governments, continued, in manner and form more or less 
 distinctly recognized, from the time of the Revolution onward ; 
 and, prior to the late civil war, no political people or body 
 politic had appeared, on the territory recognized by foreign 
 nations from time to time as belonging to the United States, in 
 any public international relation, except as one of the United 
 States, or been recognized by foreign nations or by any State 
 of the Union as using or holding in severalty the powers ex- 
 erted by the general government. 
 
 John C. Hukd, The Theory of our National Existence. 134, 135. 
 
 E. P. SMITH (1889) 
 
 In ample season for discussion and action before the adjourn- 
 ment of the first session of the first Congress, Madison pre- 
 sented a selection of the most desirable amendments suggested 
 by the ratifying States. The changes most widely called for 
 sacrificed nothing vital to the success of the new instrument. 
 They rendered the Constitution its own expounder ; they con- 
 centrated all the tenets of liberty in Magna Charta, the Petition 
 of Right, and the Bill of Rights. The prompt action of the 
 States in ratifying ten out of the twelve amendments submitted 
 
280 FEDERAL CONSTITUTION [Ch. XVII 
 
 by Congress proved that these amendments were needed, and that 
 the efforts of the anti-Federalists for a second constitutional 
 convention were not fruitless or unreasonable. . . . 
 
 The amendments once ratified, all notes of opposition were 
 lost in the chorus of admiration that resounded from every 
 quarter. In the worship of the Constitution that instantly suc- 
 ceeded, men forgot that ' ' it had been extorted from the grind- 
 ing necessity of a reluctant people." Even those who had so 
 powerfully contended for a second constitutional convention 
 began during Washington's first administration to prove as pre- 
 eminently " the friends of the Constitution," and it was almost 
 impossible to believe that an instrument, accepted by all parties 
 as the last word of political wisdom, had been produced in a 
 conflict of opinion, adopted with doubt, ratified with hesitation, 
 and amended with difficulty. 
 
 Ebward p. Smith, in J. F. Jameson's Essays on the Constitutional History 
 of the United States. Ill, 115. 
 
 HART (1891) 
 
 During the first few years of its existence the Constitution 
 was most fortunately administered by those who had framed it, 
 believed in it, and had the wisdom to apply it. Men like Ham- 
 ilton and Washington shaped a series of organizing acts which 
 proved but less important than the original text. Then came 
 a period of nearly a quarter of a century (1793-1815), when the 
 Republic was involved in foreign complications, including an 
 annexation of territory larger than its original area, and ending 
 in a war; the power over foreign affairs was thus consolidated. 
 The next twenty years (1815-1835) was a time of great com- 
 mercial growth, and public sentiment favored the application 
 of national powers, both of creation and regulation. A bank 
 was secured; internal improvements applied; commercial treaties 
 were negotiated ; and the protective policy was initiated. Then 
 came (1835-1860) a period of great effort to restrict federal 
 powers, partly on principle, and partly lest those powers should 
 be used against slavery. . . . 
 
 . . . The Constitution of 1789 has therefore undergone great 
 changes, most of them in the direction of greater centraliza- 
 tion. Amendments have rarely been necessary, because each 
 
1890-1894] CRITICAL COMMENT 281 
 
 generation has found the general principles laid down sufficient 
 to give the government power to deal with new questions which 
 come before it. The elasticity and flexibility of the Constitu- 
 tion have not only preserved the federation, but have introduced 
 a new principle into federal government. A Constitution framed 
 for four millions of people, grouped in thirteen thinly populated 
 rural States, suffices for sixty-three millions, in forty-four rich 
 States, abounding in cities. The permanence of the United 
 States is not due to the constructive skill of its founders ; it 
 rests upon the fact that the Constitution may, by the insensible 
 effect of public opinion, slowly be expanded, within the forms 
 of law, to a settlement of new questions as they arise. 
 
 Albert Bushnell Hart, Federal Government. 59, 60. 
 STEVENS (1894) 
 
 On the whole, Americans, with their democratic tendencies, 
 owe very much of the stability of their government to the 
 weakness of their legislature and the strength of their execu- 
 tive. Had Congress possessed the power of Pai'liament to 
 alter constitutional principle itself, by a majority vote at any 
 session, and had the cabinet controlled the President as the 
 English cabinet does the sovereign, the American common- 
 wealth very probably might have been wrecked in its construct- 
 ive period, or in passing through the storms of later time. 
 The presidency is justly regarded by Americans as one of the 
 most valuable creations of the Constitution of 1787. And the 
 fact that the office is rooted in the past institutions of the 
 race is not only the explanation of its existence, but a real, 
 even though unrecognized, cause of its hold on the national 
 heart. . . . 
 
 But as soon as the draft of the Constitution left the Con- 
 vention, the lack of a formal bill was severely and per- 
 sistently criticised by the people. And the promise that 
 one should be added, as soon as the new government actu- 
 ally got under way, was found necessary in order to induce 
 some of the principal States to ratify the instrument. The 
 first ten amendments, therefore, were adopted as speedily 
 as possible by the first Congress and the nation ; and to all 
 intents they are to be regarded as a part of the Constitution in 
 
282 FEDERAL CONSTITUTION [Ch. XVII 
 
 its original unity, as a product of the formative period. Tlieir 
 position in this respect is essentially different from that of the 
 amendments, which are the outcome of subsequent national 
 experience. 
 
 Thus there is not only a bill of rights in the Constitution of 
 the United States, but that bill of rights was consciously de- 
 manded by the American people themselves against the judg- 
 ment of their own Constitutional Convention, and for the 
 express reason that they regarded the liberties included therein 
 as their liberties, because based upon old English law. 
 C. Ellis Stevens, Sources of the Constitution of the United States. 173, 213. 
 
 BRTCE (189G) 
 
 The Constitution of 1789 deserves the veneration with which 
 the Americans have been accustomed to regard it. It is true 
 that many criticisms have been passed upon its arrangement, 
 upon its omissions, upon the artificial character of some of the 
 institutions it creates. Recognizing slavery as an institution 
 existing in some States, and not expressly negativing the right 
 of a State to withdraw from the Union, it has been charged 
 with having contained the germ of civil war, though that germ 
 took seventy years to come to maturity. And whatever success 
 it has attained must be in large measure ascribed to the polit- 
 ical genius, ripened by long experience, of the Anglo-American 
 race, by whom it has been worked, and who might have man- 
 aged to work even a worse-drawn instrument. Yet, after all 
 deductions, it ranks above every other written constitution for 
 the intrinsic excellence of its scheme, its adaptation to the cir- 
 cumstances of the people, the simplicity, brevity, and precision 
 of its language, its judicious mixture of definiteness in principle 
 with elasticity in details. One is therefore induced to ask, be- 
 fore proceeding to examine it, to what causes, over and above 
 the capacity of its authors, and the patient toil they bestowed 
 upon it, these merits are due, or in other words, what were the 
 materials at the command of the Philadelphia Convention for 
 the achievement of so great an enterprise as the creation of a 
 nation by means of an instrument of government. The Amer- 
 ican Constitution is no exception to the rule that everything 
 which has power to win the obedience and respect of men muslj 
 
1896-1898] CRITICAL COMMENT 283 
 
 haA'e its roots deep in the past, and that the more slowly every 
 institution has grown, so much the more enduring is it likely to 
 prove. There is little in this Constitution that is absolutely 
 new. There is much that is as old as Magna Charta. 
 
 James Bktce, American Commonwealth?- 13-14. 
 THORPE (1898) 
 
 The State has been conserved, and the purposes for which 
 the constitutions were framed — typically set forth in the pre- 
 amble to the national Constitution — have been fairly well real- 
 ized. Statesmen of the eighteenth century would impute this 
 to the efficacy of the system of checks and balances. By this 
 they meant the distinct functions of the executive, the legis- 
 lative, and the judiciary; the different ways in which they are 
 chosen ; the different times when they hand over their power to 
 their successors; the peculiar combination of the legislative 
 and the executive in the administration of government, and the 
 ultimate responsibility of all public servants to the electors. 
 This correlation of parts and functions is the peculiarity of the 
 American system. Though arbitrary and ever subject to modi- 
 fication at the will of the people, the system has been tried with 
 success, has never departed from the principles on which it was 
 founded, and has strengthened the conservatism which ever 
 underlies American politics. One commenting on government 
 in America to-day would not be likely to call attention to, much 
 less to emphasize, the system of checks and balances. He 
 would attribute the virtue of our institutions to economic and 
 sociological causes. He would dwell on the people, not on the 
 system. He would analyze political parties, public opmion, 
 and our social institutions. He would not be likely even to use 
 the terms checks and balances. In the eighteenth century gov- 
 ernment was conceived as a device ; in our times it is thought 
 of rather as an organism. It is the content, not the language, 
 of the Constitution that has changed. The supreme law, as 
 time goes on, is given more and more an economic interpre- 
 tation. If adapted to the wants of the country, such interpre- 
 tation becomes a party doctrine, and if adopted by the majority, 
 it becomes an administrative measure. If it is believed to in- 
 ■ 1 Copyright, 1896, by the Macmillan Co. 
 
284 FEDERAL CONSTITUTION [Ch. XYII 
 
 volve essential rights, it may become a part of a revised con- 
 stitution. Thus, at last, the constitutions become the depository 
 of settled politics and the register of the growth of the State. 
 Fkancis N. Thorpk, A Constitutional Historj of the American People.^ 46, 47. 
 
 Mclaughlin (190o) 
 
 It has seemed to me, however, that sufficient attention is not 
 commonly paid to the influence and bearing of these basic prin- 
 ciples of political philosophy in the period succeeding the Rev- 
 olution. The foundation doctrines everywhere current during 
 the Revolutionary time were not likely to disappear at once, for 
 on them rested the right of rebellion, through them came inde- 
 pendence, upon them was founded national existence. We 
 might be willing to assert without investigation, that the ideas 
 which men cherished and the philosophy upon which they acted 
 would be sure to affect the thoughts and activities of public 
 men during the early constitutional period and for many years 
 after the establishment of the United States. It is certainly 
 important for us to understand the ideas which men held con- 
 cerning the nature and origin of the state and society, and to 
 know the foundations upon which they believed government to 
 rest. 
 
 . . . When the constitution of the United States was being 
 made, men did not speak or think in the terms of the organic 
 philosophy. Some of them, it is true, were more or less dis- 
 tinctly conscious of the essential oneness of the American 
 people ; some of them believed that the states never had been 
 sovereign ; some of them, seeing the fact of nationality, de- 
 manded that political organization should be in keeping with 
 this fact. But the organic philosophy was developed in the 
 next century, and like all philosophy it came not from the 
 thinking of the closeted philosopher, but from the actual devel- 
 opment of society. 
 
 ... I mean simply to assert that if we seek to follow out 
 historically the interpretation of the Constitution or to find out 
 what men thought of it at the beginning, we must get into their 
 attitude of mind and understand their method of thinking. 
 
 . . . The constitutional history of the United States is in no 
 1 Copyright, 1898, by Harper & Brothers. 
 
1898-1900] CRITICAL COMMENT 285 
 
 small degree taken up with tracing opinion and assertion as to 
 the actual character of the Union ; and the historian is com- 
 pelled to notice the change which took place in the opinions, 
 words and thoughts of statesmen as they were influenced by the 
 change in society and by the prevalence or growth of doctrines 
 as to the origin and nature of the State. 
 
 . . . My purpose in this paper has been to show: (1) That 
 the men of one hundred and twenty-five years ago thought 
 within the limits of the compact philosophy; (2) That they 
 carried the compact idea so far that they actually spoke of the 
 Constitution as a social compact ; (3) That it is necessary for 
 us to remember their fundamental ideas and to interpret their 
 words and conscious acts in the light of their methods of 
 thought ; (4) That in the development of modern organic phil- 
 osophy new ideas were introduced and new meanings assigned 
 to terms; (5) That from this latter fact, from the inability to 
 agree on fundamental conceptions, arose confusion; (6) That 
 the doctrine of state sovereignty as it has been developed rests 
 on philosophic presuppositions almost if not entirely unknown 
 to the framers of the Constitution; (7) That if we use the 
 terms and insist on the ideas of the organic philosophy, we are 
 entitled to seek the realities lying behind the words of men. 
 
 Andrew McLaughlin, Social Compact and Constitutional Construction, in 
 American Historical Review, April, 1900. 468-490. 
 
286 WASHINGTON'S FAREWELL [Ch. XVIII 
 
 Chaptee XVIII 
 WASHINGTON'S FAREWELL ADDRESS 
 
 SUGGESTIONS 
 
 This document was addressed to the People of the United States as 
 a final word of parting from the President. Its date the 17th of 
 September, indicates the day of its publication, but during the pre- 
 vious summer Washington, with the advice of Madison and Hamilton, 
 had been at work upon the address. Its text contains the personal 
 point of view which the Father of Our Country assumed towards the 
 government. It sets forth his policy in domestic and foreign relations ; 
 it abounds in wholesome advice in regard to affairs of state ; and it is 
 reminiscent of his own share in the building up of a government 
 to the organization and administration of which he had contributed 
 so great a part. 
 
 The instruction given in this document to the American people has 
 been followed until the present decade with much faithfulness. In 
 the study of this final declaration we should note the doctrines of the 
 Constitutional Convention, the pi-inciples of Washington's adminis- 
 tration, and the fear which he felt of a division resulting from sec- 
 tional partisanship. 
 
 In reading the Farewell Address, one is compelled to dwell upon the 
 noble spirit, the unselfish motives, and exalted ideal of its author, 
 whose chief aim had been to bind the separate states together in a 
 lasting union. 
 
 For Outlines and Analysis, see Appendix B, § 5. 
 
 DOCUMENT 
 
 Washington's Farewell Address to the People of the United 
 States (September 17th, 1796) 
 
 George Friends, and Fellow-Citizens, The period for 
 
 Washmgton. ^ ^^^ election of a Citizen, to administer the Ex- 
 
 Works, xiu. ' 
 
 277-325. ecutive Government of the United States, being not 
 
1796] TEXT 287 
 
 far distant, and the time actually arrived, when your 
 thoughts must be employed in designating the per- 
 son, who is to be clothed with that important trust, 
 it appears to me proper, especially as it may conduce 
 to a more distinct expression of the public voice, 
 that I should now apprize you of the resolution I 
 have formed, to decline being considered among the 
 number of those, out of whom a choice is to be 
 made. 
 
 I beg you, at the same time, to do me the justice 
 to be assured, that this resolution has not been 
 taken, without a strict regard to all the considera- 
 tions appertaining to the relation, which binds a 
 dutiful citizen to his country — and that, in withdraw- 
 ing the tender of service — which silence in my situa- 
 tion might imply, I am influenced by no diminution 
 of zeal for your future interest, no deficiency of 
 grateful respect for your past kindness ; but am 
 supported by a full conviction that the step is com- 
 patible with both. 
 
 The acceptance of, and continuance hitherto in. The " Third 
 
 the office to which your suffrages have twice called J.^™ '.' *^*" 
 •' ° . ,. . Qition IS em- 
 
 me, have been a uniform sacrifice of inclination to phasized by 
 
 the opinion of duty, and to a deference for what Washing- 
 
 ton's deter- 
 appeared to be your desire. — I constantly hoped, minationto 
 
 that it would have been much earlier in my power, retire at the 
 consistently with motives, which I was not at liberty gg^jQ^^j *q^^ 
 to disregard, to return to that retirement, from 
 which I had been reluctantly drawn. — The strength 
 of my inclination to do this, previous to the last 
 election, had even led to the preparation of an ad- 
 dress to declare it to you ; but mature reflection on 
 the then perplexed and critical posture of our affairs 
 with foreign Nations, and the unanimous advice of 
 persons entitled to my confidence, impelled me to 
 abandon the idea. — 
 
 I rejoice that the state of your concerns, external 
 as well as internal, no longer renders the pursuit of 
 inclination incompatible with the sentiment of duty, 
 
288 
 
 WASHINGTON'S FAREWELL [Ch. XVIII 
 
 Personal 
 modesty was 
 the foun- 
 dation for 
 Washing- 
 ton's habit- 
 ual justice 
 to himself 
 and others. 
 
 or propriety ; and am persuaded, whatever partiality 
 may be retained for my services, that, in the present 
 circumstances of our country, you will not dis- 
 approve my determination to retire. 
 
 The impressions, with which I first undertook the 
 arduous trust, were explained on the proper occa- 
 sion. In the discharge of this trust, I will only 
 say, that I have, with good intentions, contributed 
 towards the organization and administration of the 
 government, the best exertions of which a very fal- 
 lible judgment was capable. — Not unconscious, in 
 the outset, of the inferiority of my qualifications, 
 experience in my own eyes, perhaps still more in the 
 eyes of others, has strengthened the motives to dif- 
 fidence of myself; and every day the increasing 
 weight of years admonishes me more and more, that 
 the shade of retirement is as necessary to me as it 
 will be welcome. — Satisfied, that, if any circum- 
 stances have given peculiar value to my services, 
 they were temporary, I have the consolation to be- 
 lieve, that, while choice and prudence invite me to 
 quit the political scene, patriotism does not forbid it. 
 
 In looking forward to the moment, which is in- 
 tended to terminate the career of my public life, my 
 feelings do not permit me to suspend the deep ac- 
 knowledgment of that debt of gratitude, which I owe 
 to my beloved country, — for the many honours it 
 has conferred upon me ; still more for the steadfast 
 confidence with which it has supported me ; and for 
 the opportunities I have thence enjoyed of mani- 
 festing my inviolable attachment, by services faith- 
 ful and persevering, though in usefulness unequal 
 to my zeal. — If benefits have resulted to our coun- 
 try from these services, let it always be remembered 
 to your praise, and as an instructive example in our 
 annals, that under circumstances in which the Pas- 
 sions, agitated in every direction, were liable to 
 mislead, amidst appearances sometimes dubious, 
 vicissitudes of fortune often discouraging, in situ- 
 
1796] TEXT 289 
 
 ations in which DOt iinfrequently want of success 
 has conntenanced the spirit of criticism, the con- 
 stancy of your support was the essential prop of the 
 efforts, and a guarantee of the plans by which they 
 were effected. — Profoundly penetrated with this 
 idea, I shall carry it with me to the grave, as a 
 strong incitement to unceasing vows that Heaven 
 may continue to you the choicest tokens of its be- 
 neficence — that your union and brotherly affection 
 may be perpetual — that the free constitution, which 
 is the work of your hands, may be sacredly main- 
 tained — that its administration in every department 
 may be stamped with wisdom and virtue — that, in 
 fine, the happiness of the people of these States, 
 under the auspices of liberty, may be made com- 
 plete, by so careful a preservation and so prudent a 
 use of this blessing as will acquire to them the 
 glory of recommending it to the applause, the affec- 
 tion, and adoption of every nation, which is yet a 
 stranger to it. 
 
 Here, perhaps, I ought to stop. — But a solicitude 
 for your welfare, which cannot end but with my life, 
 and the apprehension of danger, natural to that soli- 
 citude, urge me on an occasion like the present, to 
 offer to your solemn contemplation, and to recom- 
 mend to your frequent review, some sentiments; 
 which are the result of much reflection, of no incon- 
 siderable observation, and which appear to me all- 
 important to the permanency of your felicity as a 
 People. — These will be offered to you with the more 
 freedom, as you can only see in them the disinter- 
 ested warnings of a parting friend, who can possibly 
 have no personal motive to bias his counsel. — Nor 
 can I forget, as an encouragement to it your indul- 
 gent reception of my sentiments on a former and not 
 dissimilar occasion. 
 
 Interwoven as is the love of liberty with every Eeference 
 ligament of your hearts, no recommendation of mine foye^of f^ee- 
 is necessary to fortify or confirm the attachment. — dom in the 
 
 19 
 
290 
 
 WASHINGTON'S FAREWELL [Ch. XVIII 
 
 Teutonic 
 people. 
 
 1176-1783. 
 
 The Unity of Grovernment which constitutes you 
 one people, is also now dear to you. — It is justly 
 so ; — for it is a main Pillar in the Edifice of your 
 real independence ; the support of your tranquillity 
 at home ; your peace abroad ; of your safety ; of 
 your prosperity in every shape ; of that very Lib- 
 erty, which you so highly prize. — But as it is easy 
 to foresee, that, from different causes, and from dif- 
 ferent quarters, much pains will be taken, many 
 artifices employed, to weaken in j^our minds the 
 conviction of this truth ; — as this is the point in 
 your political fortress against which the batteries 
 of internal and external enemies will be most con- 
 stantly and actively (though often covertly and 
 insidiously) directed, it is of infinite moment, that 
 you should properly estimate the immense value of 
 your national Union to your collective and individ- 
 ual happiness ; — that you should cherish a cordial, 
 habitual, and immovable attachment to it; accus- 
 toming yourselves to think and speak of it as of 
 the Palladium of your political safety and pros- 
 perity; watching for its preservation with jealous 
 anxiety; discountenancing whatever may suggest 
 even a suspicion that it can in any event be aban- 
 doned ; and indignantly frowning upon the first 
 dawning of every attempt to alienate any portion 
 of our Country from the rest, or to enfeeble the sa- 
 cred ties which now link together the various parts. 
 
 For this you have every inducement of sympathy 
 and interest. Citizens, by birth or choice, of a com- 
 mon country, that country has a right to concentrate 
 your affections. The name of American, which be- 
 longs to you, in your national capacity, must always 
 exalt the just pride of Patriotism, more than any ap- 
 pellation derived from local discriminations. — With 
 slight shades of difference, you have the same Reli- 
 gion, Manners, Habits, and political Principles. — 
 You have in a common cause fought and triumphed 
 
1796] TEXT 291 
 
 together; the Independence and Liberty you pos- 
 sess are the work of joint counsels, and joint efforts 
 — of common dangers, sufferings, and successes. 
 
 But tliese considerations, however powerfully they 
 address themselves to your sensibility, are greatly 
 outweighed by those, which apply more immediately 
 to your Interest. — Here every portion of our coun- 
 try finds the most commanding motives for carefully 
 guarding and preserving the Union of the whole. 
 
 The Norths in an unrestrained intercourse with Ah-eady 
 
 the South, protected by the equal Laws of a common *^^^ North 
 
 government, finds in the productions of the latter mercial cen- 
 
 great additional resources of maritime and commer- t^"©. and the 
 
 cial enterprise — and precious materials of manufac- o-j-eat aeri- 
 
 turing industry. — The Soiith, in the same inter- cultural 
 
 course, benefiting by the agency of the North, sees its ^g 1 _ x 
 
 agriculture grow and its commerce expand. Turning tucky, Ten- 
 
 partly into its own channels the seamen of the North, ^lessee, and 
 . ^ , . . , ..... ,, T the North- 
 
 it finds its particular navigation invigorated ; — and, ^^est Terri- 
 
 while it contributes, in different ways, to nourish tory — was 
 
 and increase the general mass of the national navi- ^y peopled 
 
 gation, it looks forward to the protection of a mari- by emigrants 
 
 time strength to which itself is unequally adapted. ^^ ^^^^^ ^^ 
 
 The East, in a like intercourse with the West, al- time'a fresh 
 
 ready finds, and in the progressive improvement of market was 
 . . . T ^ T 1 - -n to develop, 
 
 interior communications, by land and water, will more 
 
 and more find a valuable vent for the commodities 
 which it brings from abroad, or manufactures at 
 home. — The West derives from the East supplies 
 requisite to its growth and comfort — and, what is 
 perhaps of still greater consequence, it must of ne- 
 cessity owe the secure enjoyment of indispensable 
 outlets for its own productions to the weight, influ- 
 ence, and the future maritime strength of the Atlan- 
 tic side of the Union, directed by an indissoluble 
 community of interest as one Nation. — Any other r^-^e Louisi- 
 tenure by which the West can hold this essential ana Purchase 
 advantage, whether derived from its own separate J,^ j^^? ■, 
 strength, or from an apostate and unnatural con- the balance. 
 
^92 WASHINGTON'S FAREWELL [Ch. XVIIl 
 
 nexion with any foreign Power, must be intrinsically 
 precarious. 
 
 While, then, every part of our country thus feels 
 an immediate and particular interest in Union, all 
 the parts combined in the united mass of means and 
 efforts cannot fail to find greater strength, greater 
 resource, proportionably greater security from ex- 
 ternal danger, a less frequent interruption of their 
 Peace by foreign Nations ; and, what is of inesti- 
 mable value ! they must derive from Union an 
 exemption from those broils and wars between 
 themselves, which so frequently afflict neighbour- 
 ing countries not tied together by the same gov- 
 ernment; which their own rivalships alone would 
 be sufficient to produce ; but which opposite foreign 
 alliances, attachments, and intrigues would stimu- 
 ialisin. ^^''' ^^^® ^^^ embitter. — Hence, likewise, they will 
 avoid the necessity of those overgrown Military 
 establishments, which, under any form of govern- 
 ment, are inauspicious to liberty, and which are to 
 be regarded as particularly hostile to Republican 
 Liberty. In this sense it is, that your Union ought 
 to be considered as a main prop of your liberty, and 
 that the love of the one ought to endear to you the 
 preservation of the other. 
 
 These considerations speak a persuasive language 
 to every reflecting and virtuous miud, — and ex- 
 hibit the continuance of the Union as a primary 
 object of Patriotic desire. — Is there a doubt, 
 whether a common government can embrace so 
 large a sphere? Let experience solve it. — ^To lis- 
 ten to mere speculation in such a case were crimi- 
 nal. We are authorized to hope, that a proper 
 organization of the whole, with the auxiliary agency 
 of governments for the respective subdivisions, will 
 afford a happy issue to the experiment. 'T is well 
 worth a fair and full experiment. With such pow- 
 erful and obvious motives to Union, affecting all 
 parts of our country, while experience shall not 
 
1796] TEXT 293 
 
 have demonstrated its impi'acticability, there will 
 
 always be reason to distrust the patriotism of those, 
 
 who in any iq^uarter may endeavour to weaken its 
 
 bands. 
 
 In contemplating the causes, which may disturb 
 
 our Union, it occurs as matter of serious concern, 
 
 that any ground should have been furnished for 
 
 characterizing parties by Geographical discrimina- N'ote, as 
 
 tions, — Northern and Southern. — Atlantic and ^*®^ t?^^' 
 
 pies, ISTulli- 
 
 Western ; whence designing men may endeavour to fication in 
 excite a belief, that there is a real difference of ,^^^^*^j£|^*^' 
 local interests and views. One of the expedients Mexican ' 
 of party to acquire influence, within particular dis- War, 1847, 
 ti'icts, is to misrepresent the opinions and aims of igg| and'the 
 other districts. — You cannot shield yourselves too Silver Ques- 
 much against the jealousies and heartburnings *^^°' 
 which spring from these misrepresentations; they 
 tend to render alien to each other those, who ought 
 to be bound together by fraternal affection, — The 
 inhabitants of our Western country have lately had a 
 useful lesson on this head. — They have seen, in the 
 negotiation by the Executive, and in the unanimous 
 ratification by the Senate, of the treaty with Spain, 
 and in the universal satisfaction at that event, The Jay 
 throughout the United States, a decisive proof how pfnckney's 
 unfounded were the suspicions propagated among Treaty of 
 them of a policy in the General Government and in {jJeVetnlvi- 
 the Atlantic States unfriendly to their interests in gation of the 
 regard to the Mississippi. — They have been wit- Mississippi, 
 nesses to the formation of two Treaties, that with place of de- 
 Great Britain, and that with Spain, which secure to posit" with- 
 them every thing they could desire, in respect to our |^j^ territory, 
 Foreign Relations, towards confirming their pros- free of duty 
 perity. — Will it not be their wisdom to rely for l^^J^^^^' 
 the preservation of these advantages on the Union 
 by which they were procured ? — Will they not 
 henceforth be deaf to those advisers, if such there 
 are, who would sever them from their Brethren, and 
 connect them with Aliens? — 
 
294 WASHINGTON'S FAREWELL [Ch. XVm 
 
 To the efficacy and permanency of your Union, a 
 Government for the whole is indispensable. — No 
 alliances however strict between the parts can be 
 an adequate substitute. — They must inevitably ex- 
 perience the infractions and interruptions, which all 
 alliances in all times have experienced. — Sensible 
 Belief that of this momentous truth, you have improved upon 
 *f r fede^ your first essay, by the adoption of a Constitution 
 ation were of G-overnment better calculated than your former 
 
 weak, but f^^ ^^^ intimate Union, and for the efficacious man- 
 the Constitu- „ ^, . 
 
 tion strong, agement of your common concerns. Ihis govern- 
 ment, the offspring of our own choice, uninfluenced 
 and unawed, adopted upon full investigation and 
 mature deliberation, completely free in its prin- 
 ciples, in the distribution of its powers, uniting 
 security with energy, and containing within itself a 
 provision for its own amendment, has a just claim 
 to your confidence and your support. — Respect for 
 its authority, compliance with its Laws, acquiescence 
 in its measures, are duties enjoined by the funda- 
 mental maxims of true Liberty. — The basis of our 
 political systems is the right of the people to make 
 No secession and to alter their Constitutions of Government. — 
 possible. -g^^ ^jjg Constitution which at any time exists, till 
 
 changed by an explicit and authentic act of the 
 whole People, is sacredly obligatory upon all. — 
 The very idea of the power and the right of the 
 People to establish Government, presupposes the 
 duty of every individual to obey the established 
 Government. 
 
 All obstructions to the execution of the Laws, 
 all combinations and associations, under whatever 
 plausible character, with the real design to direct, 
 control, counteract, or awe the regular deliberation 
 and action of the constituted authorities, are de- 
 structive of this fundamental principle, and of fatal 
 tendency. — They serve to organize faction, to give 
 it an artificial and extraordinary force — to put in 
 the place of the delegated will of the Nation, the 
 
1796] TEXT 295 
 
 will of a party ; — often a small but artful and en- 
 terprising minority of the community ; — and, ac- 
 cording to the alternate triumphs of different parties, 
 to make the public administration the mirror of the 
 ill-concerted and incongruous projects of faction, 
 rather than the organ of consistent and wholesome 
 plans digested by common councils, and modified 
 by mutual interests. — 
 
 However combinations or associations of the 
 above descriptions may now and then answer popu- 
 lar ends, they are likely, in the course of time and 
 things, to become potent engines, by which cun- 
 ning, ambitious, and unprincipled men will be en- 
 abled to subvert the Power of the People, and to 
 usurp for themselves the reins of Government; 
 destroying afterwards the very engines, which have 
 lifted them to unjust dominion. — 
 
 Towards the preservation of your Government, 
 and the permanency of j'our present happy state, it 
 is requisite, not only that you steadily discoun- 
 tenance irregular oppositions to its acknowledged 
 authority, but also that you resist with care the 
 spirit of innovation upon its principles, however 
 specious the pretexts. — One method of assault may 
 be to effect, in the forms of the Constitution, alter- 
 ations, which will impair the energy of the system, 
 and thus to undermine what cannot be directly over- 
 thrown. — In all the changes to which you may be Constitu- 
 invited, remember that time and habit are at least tional 
 as necessary to fix the true character of Govern- ments 
 ments, as of other human institutions — that ex- 
 perience is the surest standard, by which to test the 
 real tendency of the existing Constitution of a coun- 
 try — that facility in changes, upon the credit of 
 mere hypothesis and opinion, exposes to perpetual 
 change, from the endless variety of hypothesis and 
 opinion : — and remember, especially, that for the 
 efficient management of your common interests, in 
 a country so extensive as ours, a Government of as 
 
296 WASHINGTON'S FAREWELL [Ch. XVIII 
 
 much vigor as is consistent with the perfect security 
 of Liberty is indispensable. Liberty itself will find 
 in such a G-overnment, with powers properly dis- 
 tributed and adjusted, its surest Guardian. — It is, 
 indeed, little else than a name, where the Grovern- 
 ment is too feeble to withstand the enterprise of 
 faction, to confine each member of the society 
 within the limits prescribed by the laws, and to 
 maintain all in the secure and tranquil enjoyment 
 of the rights of person and property. 
 
 I have already intimated to you the danger of 
 Parties in the State, with particular reference to the 
 founding of them on Geographical discriminations. 
 
 — Let me now take a more comprehensive view, 
 and warn you in the most solemn manner against 
 the baneful effects of the Spirit of Party, generally. 
 
 This Spirit, unfortunately, is inseparable from our 
 nature, having its root in the strongest passions of 
 the human mind. — It exists under different shapes 
 in all Governments, more or less stifled, controled, 
 or repressed ; but, in those of the popular form, it 
 is seen in its greatest rankness, and is truly their 
 worst enemy. — 
 
 The alternate domination of one faction over an- 
 other, sharpened by the spirit of revenge natural 
 to party dissension, which in different ages and 
 countries has perpetrated the most horrid enormi- 
 ties, is itself a frightful despotism. — But this leads 
 at length to a more formal and permanent despotism. 
 
 — The disorders and miseries, which result, gradu- 
 ally incline the minds of men to seek security and 
 
 "The Man repose in the absolute power of an Individual; and 
 
 9^ ?"?,^^^" sooner or later the chief of some prevailing faction, 
 
 more able or more fortunate than his competitors, 
 
 turns this disposition to the purposes of his own 
 
 elevation, on the ruins of Public Liberty. 
 
 Without looking forward to an extremity of this 
 kind, (which nevertheless ought not to be entirely 
 out of sight), the common and continual mischiefs 
 
1796] TEXT 297 
 
 of the spirit of Party are sufficient to make it the 
 interest and duty of a wise People to discourage 
 and restrain it* — 
 
 It serves always to distract the Public Councils, 
 and enfeeble the Public Administration. — It agi- 
 tates the community with ill founded jealousies and 
 false alarms, kindles the animosity of one part 
 against another, foments occasionally riot and in- 
 surrection. — It opens the doors to foreign influence 
 and corruption, which find a facilitated access to the 
 Government itself through the channels of party pas- 
 sions. Thus the policy and the will of one country 
 are subjected to the policy and will of another. 
 
 There is an opinion that parties in free countries 
 are useful checks upon the Administration of the 
 Government, and serve to keep alive the Spirit of 
 Liberty. — This within certain limits is probably 
 true ; and in Governments of a Monarchical cast, 
 Patriotism may look with indulgence, if not with 
 favour, upon the spirit of party. — But in those of 
 the popular character, in Governments purely elec- 
 tive, it is a spirit not to be encouraged. — From their 
 natural tendency, it is certain there will always be 
 enough of that spirit for every salutary purpose, 
 — and, there being constant danger of excess, the 
 effort ought to be, by force of public opinion, to 
 mitigate and assuage it. — A fire not to be quenched ; 
 it demands a uniform vigilance to prevent its burst- 
 ing into a flame, lest, instead of warming, it should 
 consume. 
 
 It is important, likewise, that the habits of think- 
 ing in a free country should inspire caution in those 
 intrusted with its administration, to confine them- 
 selves within their respective constitutional spheres ; 
 avoiding in the exercise of the powers of one de- 
 partment to encroach upon another. — The spirit of ' 
 encroachment tends to consolidate the powers of all 
 the departments in one, and thus to create, what- 
 ever the form of government, a real despotism. A 
 
298 
 
 WASHINGTON'S FAREWELL [Ch. XVID 
 
 Compare 
 the Mormon 
 question. 
 Roberts' case 
 in 1900. 
 
 just estimate of that love of power, and proneness 
 to abuse it, which predominates in the human heart, 
 is sufficient to satisfy us of the truth of this posi- 
 tion. The necessity of reciprocal checks in the 
 exercise of political power, by dividing and distrib- 
 uting it into different depositories, and constituting 
 each the Guardian of the Public Weal against inva- 
 sions by the others, has been evinced by experi- 
 ments ancient and modern ; some of them in our 
 country and under our own eyes. — To preserve 
 them must be as necessary as to institute them. 
 If in the opinion of the People, the distribution or 
 modification of the Constitutional powers be in any 
 particular wrong, let it be corrected by an amend- 
 ment in the way which the Constitution designates. 
 — But let there be no change by usurpation ; for, 
 though this, in one instance, may be the instrument 
 of good, it is the customary weapon b}' which free 
 governments are destroyed. The precedent must 
 always greatly overbalance in permanent evil any 
 partial or transient benefit, which the use can at 
 any time yield. — 
 
 Of all the dispositions and habits, which lead to 
 political prosperity. Religion and morality are in- 
 dispensable supports. — In vain would that man 
 claim the tribute of Patriotism, who should labour 
 to subvert these great Pillars of human happiness, 
 these firmest props of the duties of Men and Citi- 
 zens. The mere Politician, equally with the pious 
 man, ought to respect and to cherish them. — A vol- 
 ume could not trace all their connexions with pri- 
 vate and public felicity. Let it simply be asked, 
 Where is the security for property, for reputation, 
 for life, if the sense of religious obligation desert the 
 oaths, which are the instruments of investigation in 
 Courts of Justice? And let us with caution indulge 
 the supposition, that morality can be maintained 
 without religion. — ■ Whatever may be conceded to 
 the influence of refined education on minds of pecu- 
 
1796] TEXT 299 
 
 liar structure — reason and experience both forbid 
 us to expect, that national morality can prevail in 
 exclusion of religious principle. — 
 
 'T is substantially true, that virtue or naorality is 
 a necessary spring of popular government. — The 
 rule, indeed, extends with more or less force to 
 every species of Free Government. — Who, that is a 
 sincere friend to it, can look with indifference upon 
 attempts to shake the foundation of the fabric? — 
 
 Promote, then, as an object of primary impor- 
 tance, institutions for the general diffusion of 
 knowledge. In proportion as the structure of a 
 government gives force to public opinion, it is es- 
 sential that public opinion should be enlightened. — 
 
 As a very important source of strength and se- Compare dis- 
 curity, cherish public credit. — One method of pre- frJe^^'^]!! ^^ 
 serving it is, to use it as sparingly as possible : — standard for 
 avoiding occasions of expense by cultivating peace, ^^^ p^iblic 
 but remembering also that timely disbursements to cially for 
 prepare for danger frequently prevent much greater foreign 
 disbursements to repel it ; avoiding likewise the ac- ^ ^^^^• 
 cumulation of debt, not only by shunning occasions 
 of expense, but by vigorous exertions in time of 
 Peace to discharge the debts, which unavoidable 
 wars may have occasioned, not ungenerously throw- 
 ing upon posterity the burthen, which we ourselves Debt extin- 
 ought to bear. The execution of these maxims be- fcql^^^ ^"^ 
 longs to your Representatives, but it is necessary 
 that public opinion should cooperate. — To facilitate 
 to them the performance of their duty, it is essen- 
 tial that you should practically bear in mind, that 
 towards the payment of debts there must be Rev- 
 enue — that to have Revenue there must be taxes 
 — that no taxes can be devised which are not more Taxation 
 or less inconvenient and unpleasant — that the i"f* ^^ prop- 
 
 6rlv 6X6- 
 
 intrinsic embarrassment, inseparable from the se- cuted com- 
 lection of the proper objects (which is always a pare "Con- 
 choice of difficulties) ought to be a decisive motive chartarum " 
 for a candid construction of the conduct of the 1297. 
 
300 WASHINGTON'S FAREWELL [Ch. XVIII 
 
 Grovernment in making it, and for a spirit of acqui- 
 escence in the measures for obtaining revenue, which 
 the public exigencies may at any time dictate. — 
 
 Observe good faith and justice towards all Na- 
 tions. Cultivate peace and harmony with all. — Re- 
 ligion and Morality enjoin this conduct ; and can it 
 be, that good policy does not equally enjoin it ? — It 
 will be worthy of a free, enlightened, and, at no 
 distant period, a great Nation, to give to mankind 
 the magnanimous and too novel example of a People 
 alwa^^s guided by an exalted justice and benevo- 
 lence. — Who can doubt that, in the course of time 
 and things, the fruits of such a plan would richly 
 repay any temporary advantages, which might be 
 lost by a steady adherence to it? Can it be, that 
 Providence has not connected the permanent felicity 
 of a Nation with its Virtue? The experiment, at 
 least, is recommended by every sentiment which 
 ennobles human nature. Alas ! is it rendered im- 
 possible by its vices? 
 
 In the execution of such a plan, nothing is more 
 essential, than that permanent, inveterate antipa- 
 thies against particular Nations, and passionate at- 
 tachments for others, should be excluded; and that, 
 in place of them, just and amicable feelings towards 
 all should be cultivated. The Nation, which in- 
 dulges towards another an habitual hatred, or an 
 habitual fondness, is in some degree a slave. It is 
 a slave to its animosity or to its affection, either of 
 which is sufficient to lead it astray from its duty 
 and its interest. — Antipathy in one nation against 
 another disposes each more readily to offer insult 
 and injury, to lay hold of slight causes of umbrage, 
 and to be haughty and intractable, when accidental 
 or trifling occasions of dispute occur. Hence fre- 
 quent collisions, obstinate, envenomed and bloody 
 contests. The Nation, prompted by ill-will and re- 
 sentment, sometimes impels to War the Govern- 
 ment, contrary to the best calculations of policy. — 
 
1796] TEXT 301 
 
 The Government sometimes participates in the na- 
 tional propensity, and adopts through passion what 
 reason would reject ; — at other times, it makes the 
 animosity of the Nation subservient to projects of 
 hostility instigated by pride, ambition, and other 
 sinister and pernicious motives. — The peace often, 
 sometimes perhaps the Liberty, of Nations has 
 been the Adctim. — 
 
 So likewise, a passionate attachment of one French alli- 
 
 Nation for another produces a variety of evils. — ance. Later, 
 
 Democ- 
 Sympathy for the favourite Nation, facilitating the racy" under 
 
 illusion of an imaginary common interest, in cases Genet's influ- 
 where no real common interest exists, and infusing ^°^^^- 
 into one the enmities of the other, betrays the 
 former into a participation in the quarrels and wars 
 of the latter, without adequate inducement or jus- 
 tification : It leads also to concessions to the fa- 
 vourite Nation of privileges denied to others, which 
 is apt doubly to injure the Nation making the con- 
 cessions ; by unnecessarily parting with what ought 
 to have been retained ; and by exciting jealousy, 
 ill-will, and a disposition to retaliate, in the parties 
 from whom equal privileges are withheld. And it 
 gives to ambitious, corrupted, or deluded citizens, 
 (who devote themselves to the favoured Nation) fa- 
 cility to betray or sacrifice the interests of their 
 own countr}^ without odium, sometimes even with 
 popularity ; gilding, with the appearances of a virtu- 
 ous sense of obligation, a commendable deference 
 for public opinion, or a laudable zeal for public 
 good, the base of foolish compliances of ambition, 
 corruption, or infatuation. — 
 
 As avenues to foreign influence in innumerable Question of 
 ways, such attachments are particularly alarming ^y^^""® " -^^" 
 to the truly enlightened and independent Patriot. — alliance." 
 How many opportunities do they afford to tamper 
 with domestic factions, to practise the arts of se- 
 duction, to mislead public opinion, to influence or 
 awe the public Councils ! Such an attachment of 
 
302 WASHINGTON'S FAREWELL [Ch. XVIH 
 
 a small or weak, towards a great and powerful nation, 
 dooms the former to be the satellite of the latter. 
 
 Against the insidious wiles of foreign influence, 
 I conjure you to believe me, fellow-citizens, the 
 jealousy of a free people ought to be constantly 
 awake ; since history and experience prove, that 
 foreign influence is one of the most baneful foes of 
 Republican Grovernment. — But that jealousy, to be 
 useful, must be impartial ; else it becomes the in- 
 strument of the very influence to be avoided, instead 
 of a defence against it. — Excessive partiality for 
 one foreign nation, and excessive dislike of another, 
 cause those whom they actuate to see danger only 
 on one side, and serve to veil and even second the 
 arts of influence on the other. — Real Patriots, who 
 may resist the intrigues of the favourite, are liable to 
 become suspected and odious; while its tools and 
 dupes usurp the applause and confidence of the 
 people, to surrender their interests. — 
 
 The great rule of conduct for us, in regard to 
 foreign Nations, is, in extending our commercial 
 relations, to have with them as little Political con- 
 nexion as possible. — So far as we have already 
 formed engagements, let them be fulfilled with per- 
 fect good faith. — Here let us stop. — 
 
 Europe has a set of primary interests, which to 
 us have none, or a very remote relation. — Hence 
 she must be engaged in frequent controversies, the 
 causes of which are essentially foreign to our con- 
 cerns. — Hence, therefore, it must be unwise in us 
 to implicate ourselves, by artificial ties in the ordi- 
 nary vicissitudes of her politics, or the ordinary 
 combinations and collisions of her friendships or 
 enmities. 
 Germ of Our detached and distant situation invites and 
 
 Monroe Doc- enables us to pursue a different course. If we re- 
 main one People, under an efficient government, 
 the period is not far off, when we may defy mate- 
 rial injury from external annoyance ; when we may 
 
1796] TEXT 303 
 
 take such an attitude as will cause the neutrality, 
 we may at anytime resolve upon, to be scrupulously 
 respected; when belligerent nations, under the im- 
 possibility of making acquisitions upon us, will not 
 likely hazard the giving us provocation ; when we 
 may choose peace or war, as our interest, guided by 
 justice, shall counsel. 
 
 Why forego the advantages of so peculiar a situ- 
 ation? — Why quit our own to stand upon foreign 
 ground ? — Why, by interweaving our destiny with 
 that of any part of Europe, entangle our peace and 
 prosperity in the toils of European ambition, rival- 
 ship, interest, humour, or caprice ? — 
 
 It is our true policy to steer clear of permanent 
 alliances with any portion of the foreign world ; — so 
 far, I mean, as we are now at liberty to do it ; — for 
 let me not be understood as capable of patronizing 
 infidelity to existing engagements. (I hold the 
 maxim no less applicable to public than to private 
 affairs, that honesty is always the best policy.) I 
 repeat it, therefore, let those engagements be ob- 
 served in their genuine sense. — But, in my opinion, 
 it is unnecessary and would be unwise to extend 
 them. — 
 
 Taking care always to keep ourselves, by suitable 
 establishments, on a respectably defensive posture, 
 we may safely trust to temporary alliances for ex- 
 traordinary emergencies. — 
 
 Harmony, liberal intercourse with all nations, are 
 recommended by policy, humanity, and interest. 
 But even our commercial policy should hold an equal 
 and impartial hand ; — neither seeking nor grant- 
 ing exclusive favours or preferences; — consulting "Keci- 
 the natural course of things ; — diffusing and diversi- procity." 
 fying by gentle means the streams of commerce, 
 but forcing notliing ; establishing, — with Powers s 
 disposed, — in order to give trade a stable course, 
 to define the rights of our Merchants, and to enable 
 the government to support them, — conventional rules 
 
304 WASHINGTON'S FAREWELL [Ch. XVIII 
 
 of intercourse, the best that present circumstances 
 and mutual opinion will permit, but temporary, and 
 liable to be from time to time abandoned or varied, 
 as experience and circumstances shall dictate ; con- 
 stantly keeping in view, that it is folly in one nation 
 to look for disinterested favours from another ; — that 
 it must pay with a portion of its independence for 
 whatever it may accept under that character ; — that, 
 by such acceptance, it may place itself in the con- 
 dition of having given equivalents for nominal 
 favours, and yet of being reproached with ingratitude 
 for not giving more. — There can be no greater error 
 than to expect or calculate upon real favours from 
 Nation to Nation. It is an illusion, which expe- 
 rience must cure, which a just pride ought to dis- 
 card. 
 His benedic- In offering to you, my Countrymen, these counsels 
 tions, politi- ^^ ^^ ^^^ ^^^ affectionate friend, I dare not hope 
 national. they will make the strong and lasting impression I 
 could wish, — that they will control the usual cur- 
 rent of the passions, or prevent our Nation from 
 running the course, which has hitherto marked the 
 destiny of nations. — But, if I may even flatter my- 
 self, that they may be productive of some partial 
 benefit, some occasional good ; that they may now 
 and then recur to moderate the fury of party spirit, 
 to warn against the mischiefs of foreign intrigue, to 
 guard against the impostures of pretended patriot- 
 ism ; this hope will be a full recompense for the 
 solicitude for your welfare, by which they have been 
 dictated. — 
 
 How far in the discharge of my official duties, I 
 have been guided by the principles which have been 
 delineated, the public Records and other evidences 
 of my conduct must witness to You and to the 
 world. — To myself, the assurance of my own con- 
 science is, that I have at least believed myself to be 
 guided by them. 
 
 In relating to the still subsisting war in Europe, 
 
1796] TEXT 305 
 
 my Proclamation of the 22d of April, 1793, is the 
 index to my Plan. — Sanctioned by your approving 
 voice, and by that of your Representatives in both 
 Houses of Congress, the spirit of that measure has 
 continually governed me : — uninfluenced by any at- 
 tempts to deter or divert me from it. 
 
 After deliberate examination, with the aid of the 
 best lights I could obtain, I was well satisfied that 
 our country, under all the circumstances of the case, 
 had a right to take, and was bound in duty and in- 
 terest to take, a Neutral position. — Having taken 
 it, I determined, as far as should depend upon me, 
 to maintain it, with moderation, perseverance, and 
 firmness. — 
 
 The considerations, which respect the right to 
 hold this conduct, it is not necessary on this occa- 
 sion to detail. I will only observe, that, according 
 to my understanding of the matter, that right, so 
 far from being denied by any of the Belligerent 
 Powers, has been virtually admitted by all. — 
 
 The duty of holding a neutral conduct may be 
 inferred, without anything more, from the obliga- 
 tion which justice and humanity impose on every 
 Nation, in cases in which it is free to act, to main- 
 tain inviolate the relations of Peace and Amity 
 towards other Nations. — 
 
 The inducements of interest for observing that 
 conduct will best be referred to your own reflections 
 and experience. — With me, a predominant motive 
 has been to endeavour to gain time to our country 
 to settle and mature its yet recent institutions, and 
 to progress without interruption to that degree of 
 strength and consistency, which is necessary to 
 give it, humanly speaking, the command of its own 
 fortunes. 
 
 Though, in reviewing the incidents of my Admin- 
 istration, I am unconscious of intentional error — I 
 am nevertheless too sensible of my defects not to 
 think it probable that I may have committed many 
 
 20 
 
306 WASHINGTON'S FAREWELL [Ch. XYIII 
 
 errors. — Whatever they may be, I fervently beseech 
 the Almighty to avert or mitigate the evils to which 
 they may tend. — I shall also carry with me the hope, 
 that my Country will never cease to view them with 
 indulgence ; and that, after forty-five years of my 
 life dedicated to its service with an upright zeal, the 
 faults of incompetent abilities will be consigned to 
 oblivion, as myself must soon be to the mansions of 
 rest. 
 
 Relying on its kindness in this as in other things, 
 and actuated by that fervent love towards it, which 
 is so natural to a man, who views in it the native 
 soil of himself and his progenitors for several gen- 
 erations; — I anticipate with pleasing expectation 
 that retreat, in which I promise myself to realize, 
 without alloy, the sweet enjoyment of partaking, in 
 the midst' of my fellow-citizens, the benign influence 
 of good Laws under a free Government, — the ever 
 favourite object of my heart, and the happy reward, 
 as I trust, of our mutual cares, labours, and dangers. 
 
 George Washington. 
 Gazette of the United States, September 17th, 1796. 
 
 CONTEMPORARY EXPOSITION 
 
 SEWALL (1799) 
 
 His address to the people of America, on his retiring from 
 the cares of government, is one of the most invaluable legacies 
 ever left to a people. It has been celebrated in Europe, and 
 compared to that bequeathed by Moses to the nation of Israel. 
 . . . Let this be our oracle ; let us read and study it day and 
 night. In the language of inspiration, " Let us bind it about 
 our necks, and engrave it on the tablet of our hearts." In this 
 invaluable gift, among a variety of other excellent precepts, 
 suffer me to remind you of a few. He most affectionately 
 cautions his countrymen against all immoderate attachments to 
 some, and violent antipathies against other nations. He rec- 
 ommends harmony and liberal intercourse with all, at the same 
 time that he deprecates too close a connection with any. He 
 
1796-1800] CONTEMPORARY EXPOSITION 307 
 
 exhorts to obedience and submission to government, and a gen- 
 erous confidence in our rulers, whom we ourselves have chosen ; 
 while he warns against all combinations, whether open or covert, 
 that tend to weaken government, or to lessen the authority of 
 those who administer it. He inculcates the practice of justice, 
 good faith, temperance and economy, with all the moral vir- 
 tues ; and of religion emphatically, as the basis and foundation 
 of them all. He exhorts us to the utmost of our power, to 
 cultivate peace with every nation on earth ; and as the surest 
 means to preserve it, strongly urges the necessity of maintain- 
 ing the best state of defence in our power, both by sea and 
 land. But, above all, he exhorts to union among ourselves — 
 between States and among individuals. On this, he assures us, 
 our prosperity, nay, our very existence as a nation depends. Is 
 the counsel good? Let us follow it. Are these admonitions 
 wise? We will obe}^ them. Thus shall we best prove the sin- 
 cerity of our gratitude to their author, and fully evidence our 
 veneration for his memory. But if we disregard and disobey 
 them, what are we but hypocrites, or self-deceivers? Obedi- 
 ence will lead us to the highest pinnacle of national glory. A 
 contrary conduct will dishonour, though it cannot injure our 
 greatest benefactor, and end in irremediable ruin. " If we are 
 wise, we shall be wise for ourselves, but if we scorn, we alone 
 shall bear it." 
 
 Jonathan Mitchell Sewall, in Eulogies and Orations on Washington. 
 35, 42. 
 
 PAINE (1800) 
 
 The invaluable valediction, bequeathed to the people, who 
 inherited his affections, is the effort of a mind, whose powers, 
 like those of prophecy, could overleap the tardy progress of 
 human reason, and unfold truth without the labour of investiga- 
 tion. Impressed in indelible characters, this Legacy of His In- 
 telligence will descend, unsullied as its purity, to the wonder 
 and instruction of succeeding genei-ations ; and, should the mild 
 philosophy of its maxims be ingrafted into the policy of nations, 
 at no distant period will the departed hero, who now lives only 
 in the spotless splendour of his own great actions, exist in the 
 happiness and dignity of mankind. 
 
 Thomas Paine, in Eulogies and Orations on Washington. 65. 
 
308 WASHINGTON'S FAREWELL [Ch. XVIII 
 
 BLTTH (1800) 
 
 Before the expiration of his last presidential term, he gave 
 us his paternal advice, which, if duly attended to, will forever 
 preserve to us the inheritance of freedom. Let us pursue this 
 advice, and never depart from it ; it is addressed to us all ; it is 
 addressed to every American, " Let the union of the States" 
 said our deceased Washington, "and the reciprocity of inter- 
 ests be the groundwork of your political existence ; let the illib- 
 eral spirit of party be banished forever from among you ; let 
 just and amicable feelings, devoid of all partialities and antipa- 
 thies, regulate your conduct with all nations ; guard against the 
 interference of foreign nations in your internal concerns." In 
 this advice, our Washington still lives ; in this bequest of the 
 father of our country, to the whole American people, our Wash- 
 ington will forever live, in the hearts and minds of all patriots 
 over the whole globe ; and his venerable name will descend with 
 unfading glory, down the perpetual succession of time, through 
 ages of ages. 
 
 Joseph Blyth, in Eulogies and Orations on Washington. 211. 
 
 MASON (1800) 
 
 Having lavished all her honours, his country had nothing 
 more to bestow upon him except her blessing. But he had 
 more to bestow upon his country. His views and his advice, 
 the condensed wisdom of all his reflection, observation and ex- 
 perience, he delivers to his compatriots in a manual worthy 
 of them to study, and of him to compose. 
 
 John M. Mason, in Eulogies and Orations on Washington. 239. 
 MINOT (1800) 
 
 The dangers of the Commonwealth having subsided at the close 
 of his second administration, he felt himself justified, after dedi- 
 cating forty-five years of his valuable life to her service, in with- 
 drawing to receive with resignation the great change of nature, 
 which his age and his toils demonstrated to be near. When he 
 declined your future suffrages, he left you a legacy. What! 
 like Caesar's to the Romans, money for your sports? Like 
 
1800-1859] CRITICAL COMMENT 309 
 
 Attalus's, a kingdom for your tyranny ? No ; he left you not 
 such baubles, nor for such purposes. He left you the records 
 of wisdom for your government; a mirror for the faithful 
 representation to your own view, of yourselves, your weak- 
 nesses, your advantages, your dangers: a magnet which points 
 to the secret mines and windings of party spirit, faction, foreign 
 influence : a pillar to the unity of your republic : a band to in- 
 close, conciliate and strengthen the whole of your wonderful 
 and almost boundless communities. Read, preserve the sacred 
 deposit ; and lest posterity should forget the truth of its maxims, 
 engrave them on his tomb, that they may read them when they 
 weep before it. 
 
 George R. Minot, in Eulogies and Orations on Washington. 24. 
 
 CRITICAL COMMENT 
 
 SPARKS (1837) 
 
 There is not an idea or sentiment in the Farewell Address, 
 which may not be found, more or less extended, in dif- 
 ferent parts of Washington's writings; nor, after such a 
 perusal, can any one doubt his ability to compose such a 
 paper. As a mere literary performance, though excellent, 
 it is neither extraordinary, nor in any degree superior to 
 many others known to be written by each of the parties. It 
 would add little to the great reputation of "Washington, or of 
 Hamilton, if the one or the other could be proved to be its sole 
 and unaided author. It derives its value, and is destined to 
 immortality, and chiefly from the circumstance of its containing 
 wise, pure, and noble sentiments, sanctioned by the name of 
 Washington at the moment when he was retiring from a long 
 public career, in which he had been devoted to the service of 
 his country with a disinterestedness, self-sacrifice, persever- 
 ance, and success, commanding the admiration and applause of 
 
 mankind. 
 
 Jared Sparks, George Washington. XII. 396. 
 
 BINNEY (1859) 
 
 Washington was undoubtedly the original designer of the 
 Farewell Address ; and not merely by general or indefinite in- 
 
310 WASHINGTON'S FAREWELL [Ch. XVIII 
 
 timation, but by the suggestion of perfectly definite subjects, 
 of an end or object, and of a general outline, the same which 
 the paper now exhibits. . . . By derivation from himself, the 
 Farewell Address speaks the very mind of Washington. The 
 fundamental thoughts and principles were his ; but he was 
 not the composer or writer of the paper. Hamilton was, in 
 the prevalent literary sense, the composer and writer of the 
 paper. . . . 
 
 The main trunk was Washington's ; the branches were stimu- 
 lated by Hamilton ; and the foliage, which was not exuberant 
 was altogether his. . . . 
 
 We might, though not with full and exact propriety, allot the 
 soul to Washington, and the spirit to Hamilton. The elemen- 
 tary body is Washington's, also ; but Hamilton has developed 
 and fashioned it, and he has symmetrically formed and arranged 
 the members to give combined and appropriate action to the 
 whole. 
 
 Horace Binnet, hiquiry into the Formation of Washington's Farewell 
 Address. 171. 
 
 OLNEY (1900) 
 
 It has heretofore been considered that anything like an 
 alliance between the United States and an European Power, 
 for any purpose or any time, was something not to be thought 
 of. To give a thing a bad name, however undeservedly, is to 
 do much to discredit it, and there is no doubt that the epithet 
 " entangling " — almost invariably applied — has contributed 
 largely to make ''alliance" popularly and politically odious. 
 Yet there may be " alliances " which are not " entangling" but 
 wholly advantageous, and without the French alliance, Amer- 
 ican independence, if not prevented, might have been long post- 
 poned. It has been a prevalent notion that Washington was 
 inimical to all alliances as such and left on record a solemn 
 warning to his countrymen against them. Yet Washington 
 clearly discriminated between alliances that would entangle 
 and those that would not, and between alliances that were 
 permanent and those that were temporary. Justly construed, 
 Washington's utterances are as wise to-day as when they were 
 made, and are no more applicable to the United States than to 
 
1859-1900] CRITICAL COMMENT 311 
 
 any other nation. It must be the policy of every State to avoid 
 alliances that entangle, while temporary and limited are better 
 than general and permanent alliances because friends and part- 
 ners should be chosen in view of actually existing exigencies 
 rather than in reliance upon doubtful forecasts of the uncertain 
 future. Nevertheless, up to this time the theory and practice of 
 the United States have been against all alliances peremptorily. 
 
 Richard Olnet, Growth of our Foreign Policy in The Atlantic Monthly, 
 March, 1900. 
 
312 FEDERAL POWERS [Ch. XIX 
 
 Chapter XIX 
 THE EXTENT OF FEDERAL POWERS (1819) 
 
 SUGGESTIONS 
 
 This report of tlie famous Supreme Court decision in the McCulloch 
 vs. Maryland Case bears date 1819. Of the decisions made by the 
 Supreme Court in the early part of the century this is the most typi- 
 cal, as setting forth the construction of the powers of the Federal 
 government by the courts. 
 
 The decision has a place among the documents of Anglo-Saxon 
 liberty because it shows the American theory of limitations, and the 
 extent of the power of the nation to legislate in questions which in- 
 clude individual rights; and the doctrine here stated has ever since 
 been the foundation of American national government. 
 
 The exposition and comments which follow give an opportunity for 
 acquaintance with the opinions of the ablest constitutional expounders. 
 
 For Outlines and Material, see Appendix B, § 5. 
 
 DOCUMENT 
 
 Decision in the Case of M'Culloch vs. the State of Maryland. 
 
 (iSig) 
 
 United States "Writ of error from the court of appeals of 
 Supreme Maryland. 
 
 Court Re- -' r^ -r it -. , 
 
 ports, 4 Marshall, u. J., delivered the opinion of the 
 
 Wheaton, 400- court. 
 437 The ex- 
 tract is only ^^^ ^^® ^^^® ^^w to be determined, the defendant, 
 a small part a sovereign State, denies the obligation of a law 
 Cpi^ion!^^^ enacted by the legislature of the Union ; and the 
 
 plaintiff, on his part, contests the validity of an 
 the issue. act which has been passed by the legislature of 
 
 that State. The constitution of our country, in its 
 
 most interesting and vital parts, is to be considered ; 
 
 the conflicting powers of the government of the 
 
1819] 
 
 TEXT 313 
 
 union and of its members, as marked in that con- 
 stitution, are to be discussed ; and an opinion given, 
 which may essentially influence the great operations 
 of the government. No tribunal can approach 
 such a question without a deep sense of its impor- 
 tance, and of the awful responsibility involved in 
 its decision. But it must be decided peacefully, or 
 remain a source of hostile legislation, perhaps of 
 hostility of a still more serious nature ; and if it is 
 to be so decided, by this tribunal alone can the de- 
 cision be made. On the supreme court of the 
 United States has the constitution of our country 
 devolved this important duty. . . . 
 
 Among the enumerated powers, we do not find The omitted 
 that of establishing a bank or creating a corpora- ^f^l'*^^]^'^' 
 tion. But there is no phrase in the instrument phrase: 
 
 which, like the articles of confederation, excludes "Thisgov- 
 . - . , . , . , 11-1 • ernment is 
 
 incidental or implied powers ; and which requires acknow- 
 
 that everything granted shall be expressly and ledged to be 
 
 minutely described. Even the 10th amendment, ^erated^"' 
 
 which was framed for the purpose of quieting the powers." 
 
 excessive jealousies which had been excited, omits 
 
 the word " expressly," and declares only that the . 
 
 powers "not delegated to the United States, nor (^^^f^ Ij" 
 
 prohibited to the States, are reserved to the States 
 
 or to the people ; " thus leaving the question, whether See Con- 
 
 the particular power which may become the subject stitution, 
 
 of contest, has been delegated to the one govern- ment x. 
 
 ment, or prohibited to the other, to depend on a 
 
 fair construction of the whole instrument. . . . 
 
 We admit, as all must admit, that the powers of bern,^say^s^^^ 
 
 the government are limited, and that its limits are the Court, 
 
 not to be transcended. But we think the sound impossible to 
 
 . . enumerate 
 
 construction of the constitution must allow to the all the de- 
 national legislature that discretion, with respect to ^^ils, unless 
 ,, "u -u- i^ ^\^ -1. £ XI, the Constitu- 
 
 the means by which the powers it confers are to be ^jq^ should 
 
 carried into execution, which will enable that body "partake of 
 to perform the high duties assigned to it, in the *f a^e^af^*^ 
 manner most beneficial to the people. Let the end code."* 
 
314 FEDERAL POWERS [Ch. XIX 
 
 Since the be legitimate, let it be within the scope of the con- 
 government stitution, and all means which are appropriate, 
 do an act it which are plainly adapted to that end, which are 
 stiould be al- not prohibited, but consist with the letter and spirit 
 lect^the*^ ^^' ^^ ^^^^ constitution, are constitutional. . . . 
 means. ... In the Legislature of the Union alone, are 
 
 Taxation ^^^ represented. The legislature of the Union alone, 
 especially therefore, can be trusted by the people with the 
 finnatio ^^" power of controlling measures which concern all, 
 Chartarum," in the confidence that it will not be abused. This, 
 
 has been a then, is not a case of confidence, and we must con- 
 right of the ' . ' 
 people. sider it as it really is. 
 
 If we apply the principle for which the state of 
 Maryland contends, to the constitution generally, 
 we shall find it capable of changing totally the char- 
 acter of that instrument. We shall find it capable 
 of arresting all the measures of the government, 
 and of prostrating it at the foot of the States. The 
 American people have declared their constitution, 
 and the laws made in pursuance thereof, to be su- 
 preme ; but this principle would transfer the su- 
 premacy, in fact, to the States. 
 
 ^ , ^, . , If the States may tax one instrument, employed 
 
 In both Arts. , , -: , • j. -^ 
 
 of Confed., by the government m the execution oi its powers, 
 
 vi., and the they may tax any and every instrument. They 
 Constitution, , ,, -i ,, j. ^i • j. ^i 
 
 U. S. Art. i. ^^y ^^^ ^'^® Toaail ; they may tax the mint ; they 
 
 Sect. 10, the may tax patent rights ; they may tax the papers 
 
 niedTo the ^^ ^^^® custom-house ; they may tax judicial process ; 
 
 several States they may tax all the means employed by the govern- 
 
 are clearly ment, to an excess which would defeat all the ends 
 
 f^'mnnPT's.rpri 
 
 of government. This was not intended by the 
 American people. They did not design to make 
 their government dependent on the States. 
 
 Gentlemen say, they do not claim the right to 
 extend state taxation to these objects. They limit 
 their pretensions to property. But on what princi- 
 ple is this distinction made? Those who make it 
 have furnished no reason for it, and the principle 
 for which they contend denies it. They contend 
 
1819] TEXT 315 
 
 that the power of taxation has no other limit than 
 is found in the lOtli section of the 1st article of 
 the constitution; that, with respect to everything 
 else, the power of the States is supreme, and admits 
 of no control. If this be true, the distinction be- 
 tween property and other subjects to which the 
 power of taxation is applicable, is merely arbi- 
 trary, and can never be sustained. This is not all. 
 If the controlling power of the States be estab- State sov- 
 lished ; if their supremacy as to taxation be ac- ereignty had 
 knowledged ; what is to restrain their exercising cry of the 
 this control in any shape the}' may please to give Jeffersonian 
 it? Their sovereignty is not confined to taxation, ^^^ g^^^^^ 
 That is not the only mode in which it might be dis- the outset. 
 played. The question is, in truth, a question of 
 supremacy; and if the right of the States to tax 
 the means employed by the general government be 
 conceded, the declaration that the constitution, and 
 the laws made in pursuance thereof, shall be the Note the 
 
 supreme law of the land, is empty and unmeaning Nullification 
 , 1 ,. controversy 
 
 declamation. . . . of 1832-33. 
 
 The court has bestowed on this subject its most 
 deliberate consideration. The result is a convic- 
 tion that the States have no power, by taxation or 
 otherwise, to retard, impede, burden, or in any 
 manner control, the operations of the constitutional 
 laws enacted by Congress to carry into execution 
 the powers vested in the general government. This <C>- ' 
 is, we think, the unavoidable consequence of that 
 supremacy which the constitution has declared. 
 
 We are unanimously of opinion, that the law 
 
 passed by the legislature of Maryland, imposing 
 
 a tax on the Bank of the United States, is un- 
 
 ,., ,. , , . T Actual state 
 
 constitutional and void. ria;hts are not 
 
 This opinion does not deprive the States of any limited or in- 
 
 resources which they originally possessed. It does i""tiris "deci- 
 
 not extend to a tax paid by the real property of sion, but 
 
 the bank, in common with the other real property *^^y ^J®. 
 
 • , • , r, • -. ^1 • defined m 
 
 Within the State, nor to a tax imposed on the in- extent. 
 
316 
 
 FEDERAL POWERS 
 
 [Ch. XIX 
 
 Not the first 
 instance of 
 quashing a 
 state law by 
 Federal 
 Courts. 
 
 terests which the citizens of Maryland may hold in 
 this institution, in common with other property of 
 the same description throughout the State. But 
 this is a tax on the operations of the bank, and is, 
 consequently, a tax on the operation of an instru- 
 ment employed by the government of the Union to 
 carry its powers into execution. Such a tax must 
 be unconstitutional. 
 
 . . . On consideration whereof, it is the opinion 
 of this court, that the act of the legislature of 
 Maryland is contrary to the Constitution of the 
 United States, and void. ... It is therefore ad- 
 judged and ordered, that the said judgment of the 
 said court of appeals of the State of Maryland, in 
 this case, be, and the same hereby is, reversed and 
 annulled. And this court, proceeding to render 
 such judgment as the said court of appeals should 
 have rendered, it is further adjudged and ordered, 
 that the judgment of the said Baltimore county 
 court be reversed and annulled, and that judgment 
 be entered in the said Baltimore county court for 
 the said James W. M'Culloch. 
 
 CONTEMPORARY EXPOSITION 
 
 JSILES' REGISTER (1819) 
 
 Having so long entertained such opinions as incontrover- 
 tible truths, and as a weak, but honest apostle in the cause of 
 mankind, endeavoured to impress them upon all within our 
 reach, the horror of an apprehension that we have deceived 
 ourselves and others, may be better felt than described : it is 
 like to a man discovering the infidelity of his wife whilst she 
 reposes on his bosom, and heart seems united to heart! A 
 deadly blow has been struck at the sovereignty of the states, 
 and from a quarter so far removed from the people as to be 
 hardly accessible to public opinion — it is needless to say that 
 we allude to the decision of the supreme court, in the case of 
 McCulloch versus the State of Maryland, by which it is estab- 
 
1819] CONTEMPORARY EXPOSITION 317 
 
 lished that the states cannot tax the bank of the United 
 States. . . . 
 
 But we believe that the broad question is settled, for the 
 National Intelligencer of Monday last, giving an account of 
 the proceedings of the supreme court on Saturday, says — " Mr. 
 chief justice Marshall delivered the unanimous opinion of the 
 court in the case of McCulloch against the state of Maryland. 
 
 " 1st. That congress had, constitutionally, a right to estab- 
 lish the banks of the United States. 
 
 " 2dly. That the bank has authority to establish branches in 
 such states of the Union as it thinks fit. 
 
 " 3dly. That the state of Maryland has no right to tax the 
 branch of the bank established in that state." 
 
 We are awfully impressed with a conviction that the welfare 
 of the union has received a more dangerous wound than fifty 
 Hartford conventions, hateful as that assemblage was, could 
 infiict — reaching so close to the vitals as seemingly to draw 
 the heart's blood of liberty and safety, and which may be 
 wielded to destroy the whole revenues, and so do away the 
 sovereignties of the states. In the progress of this principle, 
 we can easily anticipate the time when some daring scoundrel, 
 having fortified himself by soul-trading incorporations, may 
 seize upon these fair countries for a kingdom, and, surrounded 
 with obedient judges and lying priests, punish his opponents, 
 after the manner of European despots, with fines, imprison- 
 ment and tortures here, and the terrors of the lower world 
 hereafter. But we will not despair of the republic, nor yet 
 give up the ship ; no alternative, however, is left to preserve 
 the sovereignty of the states but by amending the constitution 
 of the United States, and more clearly defining the original 
 intentions of that instrument in several respects, but espe- 
 cially in regard to incorporations : — these are evidences of sov- 
 ereignty ; congress has not a sovereign power, except in the 
 cases specially delegated. 
 
 Hezekiah Nilbs, in Niks' " Weekly Register." XVI. 43. 
 FREEMAN'S JOURNAL (1819) 
 
 " The book! " Something is still said in Philadelphia about 
 the book found in the office of the Bank of the United States 
 
318 FEDERAL POWERS [Ch. XIX 
 
 at Baltimore. It is probable, that the eminent appellation of 
 this thing will be lost, by finding three or four similar books at 
 other places ! We have good reason to believe that attempts 
 have been made to rival Baltimore in — speculation ! . . . 
 
 " City Bank of Baltimore." The board of directors elected 
 since the " blow up " of this bank, have, at length, appointed a 
 day for laying a statement of the affairs of the institution be- 
 fore the stockholders — viz., the 20th of October next. This 
 distant date, after so long a delay, has excited no little sur- 
 prise ; but we are told by those we have a right to believe, that 
 the books and accounts of this bank were in such a state of 
 confusion, that an earlier period could not be fixed upon, 
 though the new cashier and clerks, (well skilled in accounts) 
 had laboured and were yet labouring excessively, to ascertain 
 the true state of the bank ! ! ! 
 
 The stock of this bank is quoted by the brokers at $7 for 
 15 paid. . . . 
 
 " Bad Times ! " Honesty has fled from the world, and Sin- 
 cerity is fallen asleep — Piety has hidden herself, and Justice 
 cannot find the way — the Helper is not at home, and Charity 
 lies sick ; Benevolence is under arrest, and Faith is nearly ex- 
 tinguished ; the Virtues go a begging, and Truth has long since 
 been buried ; Credit has turned crazy, and Conscience is nailed 
 on the wall. 
 
 Quoted in Niks' " Weekbj Register.'" XVI. 421. 
 
 CRITICAL COMMENT 
 
 STORY (1833) 
 
 It is true that among the enumerated powers we do not find 
 that of establishing a bank, or creating a corporation. But we 
 do find there the great powers to levy and collect taxes : to 
 borrow money : to regulate commerce : to declare and conduct 
 war : and to raise and support armies and navies. Now, if a 
 bank be a fit means to execute any or all of these powers, it is 
 just as much implied, as any other means. ... In the present 
 times it can hardly require argument to prove that it is a con- 
 venient, a useful and an essential instrument in the fiscal ope- 
 rations of the government of the United States. This is so 
 
1819-1896] CRITICAL COMMENT 319 
 
 generally admitted by sound and intelligent statesmen that it 
 would be a waste of time to endeavour to establish the truth by 
 an elaborate survey of the mode in which it touches the ad- 
 ministration of all the various branches of the powers of the 
 Government. 
 
 Joseph Story, Commentaries on the Constitution of the United States. 
 448. 
 
 HARE (1889) 
 
 The case of McCuUoch v. The State of Maryland is entirely 
 consonant with the course of judicial decision, and so much in 
 harmony with that of legislature that if the doctrine which it 
 established were overthrown a large and essential part of the 
 legislation of Congress would fall with it. That the Bank of 
 the United States was twice incorporated by men belonging to 
 different parties, and viewing the Constitution in different as- 
 pects ; that its constitutionality was never assailed success- 
 fully, and was sustained on the only occasion when the question 
 was brought into court ; that it finally fell, not in consequence 
 of a denial of the implied power of Congress to incorporate a 
 bank, . . . but because the president thought that some of the 
 details of the bill presented for his signature were objection- 
 able and exceeded the limits of the executive power — would be 
 enough to prove, if proof were needed, that the principles vin- 
 dicated by Chief-Justice Marshall are deeply rooted in the 
 Constitution, and cannot be disturbed without destroying its 
 usefulness. 
 
 John Inness C. Hare, American Constitutional Law. I. 107. 
 
 WILLOUGHBY (1890) 
 
 The case of McCulloch v. Maryland arose from the attempt 
 on the part of Maryland to prevent the operation, within her 
 borders, of the federal institution, the Second United States 
 Bank. This she endeavoured to do by taxing out of existence 
 the branch bank which had been located on her territory. 
 
 Wesxel "W. Willoughby, Supreme Court of the United States. 59. 
 
 W. G. SUMNER (1896) 
 
 February 11th, 1818, Maryland laid a stamp tax on notes of 
 any bank doing business in the State and not by or with the 
 
320 FEDERAL POWERS [Ch. XIX 
 
 authority of the same. . . . The Bank of the United States 
 paid no heed to this law. In the case at law which resulted 
 (McCulloch V. Maryland), the tax was held to be unconstitu- 
 tional by the Supreme Court of the United States. It was held 
 that the Bank was constitutionally endowed with a right to 
 establish branches in any State. These branches were not tax- 
 able by the State, but real estate, owned by the Bank, or the 
 proprietary interest of citizens of the State in it, might be taxed 
 like other property : Congress has power to charter a national 
 bank as one means of carrying on the fiscal operation of the 
 national government; the States cannot by taxation impede 
 Congress in the exercise of any of its constitutional powers; if 
 the end is legitimate and within the scope of the constitution, 
 any means may be employed which are appropriate and not 
 prohibited. 
 
 William Gkaham Sumner, History of Banking in the United States. 
 I. 100. 
 
1823] MONROE DOCTRINE— TEXT 821 
 
 Chapter XX 
 LIBERTIES OF OTHER AMERICAN PEOPLES (1823) 
 
 SUGGESTIONS 
 
 This document contains such portions of President Monroe's Message 
 to Congi-ess, Dec. 2, 1823, as bore upon the subject of international 
 relationship. The President called the attention of Congress to the 
 aggressive schemes of Russia, and the probable policy of the Holy 
 Alliance. This memorable doctrine bears the name of the President, 
 because of its place in his annual message ; but the principles set 
 forth therein are the embodiment of the thought of great American 
 statesmen from the beginning of the nation. The spirit of " hands 
 off," no " entangling alliances " and " remote situation " can be traced 
 throughout the writings and speeches of such diplomatists as Pownall, 
 Jefferson, Washington, Adams, and John Quincy Adams. The 
 ■writers upon foreign relationships since 1823 have examined the tenets 
 of this document with great interest. Its power and influence have 
 guided European as well as American thought. 
 
 Before presenting the subject of the Monroe Doctrine to students, a 
 certain amount of European history must be reviewed so that an in- 
 telligent understanding may be had of the bases of the principles set 
 forth ; Napoleon's aggrandizement, the faU of the great master of the 
 French empire, the restoration of Louis XVIII. to the throne of 
 France ; Spain's colonies and their growing spirit of independence ; 
 Russia's aggTession on the Pacific slope ; the Holy Alliance with its 
 conservative belief in monarchical government ; the attitude of Great 
 Britain towards the alliance and hence towards the United States, — 
 some knowledge of these questions is absolutely necessary before the 
 document can be appreciated, and before the contemporaneous ex- 
 position can illuminate its text. 
 
 For Outlines and Material, see Appendix B, § 6. 
 
 DOCUMENT 
 
 The Monroe Doctrine (1823) 
 Embodied in President Monroe's Message at the J. D. Rich- 
 
 COMMENCEMENT OF THE FiRST SESSION OF THE 7 ^°ii*^/-fi™" 
 
 pilation oj the 
 
 Eighteenth Congress, December 2, 1823. Messages and 
 
 PdTOSVS of ths 
 
 At the proposal of the Russian Imperial Govern- presidents. 
 ment, made through the minister of the Emiperor H- 209, 219. 
 
 21 
 
322 
 
 MONROE DOCTRINE 
 
 [Ch. XX 
 
 The dispute 
 as to terri- 
 tory in the 
 northwest 
 was settled 
 by a separate 
 convention 
 between the 
 United 
 States and 
 Eussia, 
 signed at St. 
 Petersburg, 
 April 5-17, 
 1824. 
 
 This prin- 
 ciple declares 
 that no new 
 European 
 colonial es- 
 tablishments 
 shall be 
 allowed on 
 territory 
 hitherto un- 
 occupied. 
 See Wash- 
 ington's 
 Farewell 
 Address. 
 
 Since 1823 
 there have 
 been no ex- 
 tensions of 
 European 
 political sys- 
 
 residing here, a full power and instructions have 
 been transmitted to the minister of the United 
 States at St. Petersburg to arrange by amicable 
 negotiation the respective rights and interests of 
 the two nations on the northwest coast of this con- 
 tinent. ... In the discussions to which this interest 
 has given rise and in the arrangements by which they 
 may terminate, the occasion has been judged pi'oper 
 for asserting, as a principle in which the rights and 
 interests of the United States are involved, that the 
 Atnerican continents, by the free and independent 
 condition which they have assumed and maintain, 
 are henceforth not to be considered as subjects for 
 future colouization by any European powers. . . . 
 The citizens of the United States cherish senti- 
 ments the most friendly in favour of the liberty and 
 happiness of their fellow-raen on that side of the 
 Atlantic. In the wars of the European powers in 
 matters relating to themselves we have never taken 
 any part, nor does it comport with our policy so to do. 
 It is only when our rights are invaded or seriously 
 menaced that we resent injuries or make prepara- 
 tion for our defense. With the movements in this 
 hemisphere we are of necessity more immediately 
 connected, and by causes which must be obvious to 
 all enlightened and impartial observers. The politi- 
 cal system of the allied powers is essentially differ- 
 ent in this respect from that of America. This 
 difference proceeds from that which exists in their 
 respective Governments ; and to the defense of our 
 own, which has been achieved by the loss of so much 
 blood and treasure, and matured by the wisdom of 
 their most enlightened citizens, and under which 
 we have enjoyed unexampled felicity, this whole 
 nation is devoted. We owe it, therefore, to candour 
 and to the amicable relations existing between the 
 United States and those powers to declare that we 
 should consider any attempt on their part to extend 
 their system to any portion of this hemisphere as 
 
18-23-1826] CONTEMPORARY EXPOSITION 323 
 
 dangerous to our peace and safety. With the exist- terns to any 
 ing colonies or dependencies of any European power ^j^jg j^gj^i. 
 we have not interfered and shall not interfere. But sphere ex- 
 with the Governments who have declared their in- F^i.en*^*^in. 
 dependence and maintained it, and whose indepen- vasion of 
 dence we have, on great consideration and on just ^^^^z.^' 
 principles, acknowledged, we could not view any 
 interposition for the purpose of oppressing them, 
 or controlling iu any other manner their destiny, 
 by any European power in any other light than as 
 the manifestation of an unfriendly disposition to- 
 wards the United States. . . . 
 
 Our policy in regard to Europe, which was adopted 
 at an early stage of the wars which have so long non-inter- 
 agitated that quarter of the globe, nevertheless re- vention in 
 mains the same, which is, not to interfere in the offlh-s^^'^ 
 internal concerns of any of its powers ; to consider 
 the government de facto as the legitimate govern- 
 ment for us ; to cultivate friendly relations with it, 
 and to preserve those relations by a frank, firm, 
 and manly policy, meeting in all instances the just 
 claims of every power, submitting to injuries from 
 none. But in regard to those continents circum- 
 stances are eminently and conspicuously different. 
 It is impossible that the allied powers should extend interposition 
 their political system to any portion of either con- in tlie affairs 
 tinent without endangering our peace and happiness; i^sli-Ame^-i^can 
 nor can anyone believe that our southern brethren, Republics. 
 if left to themselves, would adopt it of their own 
 accord. It is equally impossible, therefore, that we 
 should behold such interposition in any form, with 
 indifference. 
 
 CONTEMPORARY EXPOSITION 
 
 JOHN QUrsrCT ADAMS (1823) 
 
 15th (1823). I received a note from Mr. D. Brent, saying 
 that the President wished to see me at the office at noon. I 
 went and found him there. He asked for the correspondence 
 
324 MONROE DOCTRINE [Ch. XX 
 
 relating to the intercourse with the British American colonies, 
 with a view to the particular notice which he intends to take of 
 it in the message ; which I thought should have been only in 
 general terms. He also showed me two letters which he had 
 received — one from Mr. Jefferson, 23d October, and one from 
 Mr. Madison of 30th October, giving their opinions on the 
 proposals of Mr. Canning. The President had sent them the 
 two dispatches from R. Rush of 23d and 28th August, enclos- 
 ing the correspondence between Canning and. him, and requested 
 their opinions on the proposals. Mr. Jefferson thinks them 
 more important than anything that has happened since our 
 Revolution. He is for acceding to the proposals, with a view 
 to pledging Great Britain against the Holy Allies ; though he 
 thinks the island of Cuba would be a valuable and important 
 acquisition to our Union. Mr. Madison's opinions are less de- 
 cisively pronounced, and he thinks, as I do, that this move- 
 ment on the part of Great Britain is impelled more by her 
 interest than by a principle of general liberty. . . . 
 
 21st. I mentioned also my wish to prepare a paper to be 
 delivered confidentially to Baron Tuyl, and the substance of 
 which I would in the first instance express to him in a verbal 
 conference. It w^ould refer to the verbal communications re- 
 cently made by him, and to the sentiments and dispositions 
 manifested in the extract of a dispatch relating to Spanish 
 affairs which he lately put into my hands. My purpose would 
 be in a moderate and conciliatory manner, but with a firm and 
 determined spirit, to declare our dissent from the principles 
 avowed in those communications ; to assert those upon which 
 our own Government is founded, and, while disclaiming all 
 intention of attempting to propagate them by force, and all 
 interference with the political affairs of Europe, to declare our 
 expectation and hope that the European powers will equally 
 abstain from the attempt to spread their principles in the 
 American hemisphere, or to subjugate by force any part of 
 these continents to their will. . . . 
 
 4th. I went to the President's and found Gales, the half-editor 
 of the National Intelligencer, there. He said the message was 
 called a war message; and spoke of newspaper paragraphs 
 from Europe announcing that an army of twelve thousand 
 
1823] CONTEMPORARY EXPOSITION 325 
 
 Spaniards was to embark immediately to subdue South Amer- 
 ica. I told him there was absurdity on the face of these 
 paragraphs, as the same newspapers announced with more 
 authenticity the disbanding of the Spanish army. The Presi- 
 dent himself is singularly disturbed with these rumours of in- 
 vasion by the Holy Alliance. 
 
 C. F. Adams, editor, Memoirs of John Quincy Adams. VI. 185, 194, 226, 
 
 JEFFERSON (1823) 
 
 To THE President 
 
 MoNTiCELLO, October 24, 1823. 
 Dear Sir, — The question presented by the letters you have 
 sent me, is the most momentous which has ever been offered to 
 my contemplation since that of Independence. That made us 
 a nation, this sets our compass and points the course which we 
 are to steer through the ocean of time opening on us. And 
 never could we embark on it under circumstances more au- 
 spicious. Our first and fundamental maxim should be, never 
 to entangle ourselves in the broils of Europe. Our second, 
 never to suffer Europe to intermeddle with cis- Atlantic affairs. 
 America, North and South, has a set of interests distinct from 
 those of Europe, and peculiarly her own. She should therefore 
 have a system of her own, separate and apart from that of 
 Europe. While the last is labouring to become the domicil of 
 despotism, our endeavour should surely be, to make our hemi- 
 sphere that of freedom. One nation, most of all, could dis- 
 turb us in this pursuit ; she now offers to lead, aid, and accom- 
 pany us in it. By acceding to her proposition, we detach her 
 from the bands, bring her mighty weight into the scale of free 
 government, and emancipate a continent at one stroke, which 
 might otherwise linger long in doubt and difficulty. Great 
 Britain is the nation which can do us the most harm of any 
 one, of all on earth ; and with her on our side we need not fear 
 the whole world. With her then, we should most sedulously 
 cherish a cordial friendship ; and nothing would tend more to 
 knit our affections than to be fighting once more, side by side, 
 in the same cause. Not that I would purchase even her amity 
 at the price of taking part in her wars. But the war in which 
 
326 MONROE DOCTRINE [Ch. XX 
 
 the present proposition might engage us, should that be its 
 consequence, is not her war, but ours. Its object is to intro- 
 duce and establish the American system, of keeping out of our 
 land all foreign powers, of never permitting those of Europe 
 to intermeddle with the affairs of our nations. It is to maintain 
 our own iDrinciple, not to depart from it. . . . 
 
 I have been so long weaned from political subjects, and have 
 so long ceased to take any interest in them, that I am sensible 
 I am not qualified to offer opinions on them worthy of any 
 attention. But the question now proposed involves conse- 
 quences so lasting, and effects so decisive of our future des- 
 tinies, as to rekindle all the interest I have heretofore felt on 
 such occasions, and to induce me to the hazard of opinions, 
 which will prove only my Wish to contribute still my mite 
 towards anything which may be useful to our country. And 
 praying you to accept it at only what it is worth, I add the 
 assurance of my constant and affectionate friendship and 
 
 respect. 
 
 Thomas Jefferson, Complete Works. VII. 315, 317. 
 
 MADISON (1823) 
 
 To President Monroe 
 
 Oct. 30, 1823. 
 D^ Sir, — I have just received from Mr. Jefferson your let- 
 ter to him, with the correspondence between Mr. Canning and 
 Mr. Rush, sent for his and my perusal, and our opinions on the 
 subject of it. . . . The professions we have made to these 
 neighbours, our sympathies with their liberties and independ- 
 ence, the deep interest we have in the most friendly relations 
 with them, and the consequences threatened by a command of 
 their resources by the Great Powers, confederated against the 
 rights and reforms of which we have given so conspicuous and 
 persuasive an example, all unite in calling for our efforts to 
 defeat the meditated crusade. 
 
 To Richard Rush 
 
 MoNTPELiER, Nov. 13, 1823. 
 D^ Sir, — I have received your favour of September 10. 
 . . . Whatever may be the motives or the management of the 
 British Government, I cannot pause on the question whether 
 
1823-1826] CONTEMPORARY EXPOSITION 327 
 
 we ought to join her in defeating the efforts of the Holy Alli- 
 ance to restore our Independent neighbours to the condition of 
 Spanish Provinces. Our principles and our sympathies; the 
 stand we have taken in their behalf ; the deep interest we have 
 in friendly relations with them ; and even our security against 
 the Great Powers, who, having conspired against national 
 rights and reforms, must point their most envenomed wrath 
 against the United States, who have given the most formidable 
 example of them ; all concur in enjoining on us a prompt ac- 
 ceptance of the invitation to a communion of counsels, and, if 
 necessar}^, of arms, in so righteous and glorious a cause. 
 
 James Madison, Works. III. 339, 345. 
 
 WEBSTER (1826) 
 
 Now, Sir, it did so happen, that, as soon as the Spanish king 
 was completely reestablished, he invited the cooperation of 
 his allies, in regard to South America. In the same month of 
 December, of 1823, a formal invitation was addressed by Spain 
 to the courts of St. Petersburg, Vienna, Berlin, and Paris, pro- 
 posing to establish a conference at Paris, in order that the 
 plenipotentiaries there assembled might aid Spain in adjusting 
 the affairs of her revolted provinces. . . . 
 
 The proposed meeting, however, did not take place. Eng- 
 land had already taken a decided course ; for as early as 
 October, Mr. Canning, in a conference with the French min- 
 ister in London, informed him distinctly and expressly, that 
 England would consider any foreign interference, \)y force or 
 by menace, in the dispute between Spain and the colonies, as a 
 motive for recognizing the latter without delay. It is probable 
 this determination of the English government was known here 
 at the commencement of the session of Congress ; and it was 
 under these circumstances, it was in this crisis, that Mr. Mon- 
 roe's declaration was made. It was not then ascertained whether 
 a meeting of the allies would or would not take place, to con- 
 cert with Spain the means of reestablishing her power; but it 
 was plain enough they would be pressed by Spain to aid her 
 operations ; and it was plain enough, also, that they had no 
 particular liking to what was taking place on this side of the 
 Atlantic, nor any great disinclination to interfere. This was 
 the posture of affairs ; and. Sir, I concur entirely in the senti- 
 
328 MONROE DOCTRINE [Ch. XX 
 
 meet expressed in the resolution of a gentleman from Pennsyl- 
 vania, that this declaration of Mr. Monroe was wise, seasonable, 
 and patriotic. 
 
 It has been said, in the course of this debate, to have been 
 a loose and vague declaration. It was, I believe, sufficiently 
 studied. I have understood, from good authority, that it was 
 considered, weighed, and distinctly and decidedly approved, by 
 every one of the President's advisers at that time. Our gov- 
 ernment could not adopt on that occasion precisely the course 
 which England had taken. England threatened the immediate 
 recognition of the provinces, if the Allies should take part with 
 Spain against them. We had already recognized them. It 
 remained, therefore, only for our government to say how we 
 should consider a combination of the Allied Powers, to effect 
 objects in America, as affecting ourselves ; and the message 
 was intended to say, what it does say, that we should regard 
 such combination as dangerous to us. Sir, I agree with those 
 who maintain the proposition, and I contend against those who 
 deny it, that the message did mean something ; that it meant 
 much ; and I maintain, against both, that the declaration 
 effected much good, answered the end designed by it, did great 
 honour to the foresight and the spirit of the government, and 
 that it cannot now be taken back, retracted, or annulled, with- 
 out disgrace. It met. Sir, with the entire concurrence and the 
 hearty approbation of the country. The tone which it uttered 
 found a corresponding response in the breasts of the free people 
 of the United States. That people saw, and they rejoiced to 
 see, that, on a fit occasion, our weight had been thrown into 
 the right scale, and that, without departing fi'om our duty, we 
 had done something useful, and something effectual, for the 
 cause of civil liberty. One general glow of exultation, one 
 universal feeling of the gratified love of liberty, one conscious 
 and proud perception of the consideration which the country 
 possessed, and of the respect and honour which belonged to it, 
 pervaded all bosoms. Possibly the public enthusiasm went too 
 far ; it certainly did go far. But, Sir, the sentiment which this 
 declaration inspired was not confined to ourselves. Its force 
 was felt everywhere, by all those who could understand its 
 object and foresee its effect. 
 
 Daniel Webster, Worhs. III. 202, 203. 
 
1826-1875] CRITICAL COMMENT 329 
 
 CRITICAL COMMENT 
 
 DANA (1866) 
 
 It is to be borne in mind that the Declarations known as the 
 Monroe Doctrine have never received the sanction of an act or 
 resolution of Congress : nor have they any of that authority 
 which European governments attach to a royal ordinance. 
 They are, in fact, only the declarations of an existing adminis- 
 tration of what its own policy would be, and what it thinks 
 should ever be the policy of the country, on a subject of para- 
 mount and permanent interest. . . . 
 
 Confining itself to a declaration against interposition to op- 
 press or control, or to extend the system of the Iloly Alliance 
 to this hemisphere, the message avoids committing the govern- 
 ment on the subject of acquisition, either by the United States 
 or the European powers, and whether by voluntary cession or 
 conquest. ... In further explanation of the Monroe Doctrine 
 it is to be noticed that it is correctly called a doctrine and no 
 more. There is no intimation what the United States will do 
 in case of European interposition, or what means it will take 
 to prevent it. . . . And public opinion may be considered as 
 settled on the point that the action of the nation, in any case 
 that may arise, must be unembarrassed by pledge or compact : 
 and, further, as equally settled, against the introduction of any- 
 thing approaching the nature of a Holy Alliance for this conti- 
 nent, though it be in the interests of republican institutions. 
 
 Richard Henry Dana, Wheaton's Elements of International Law. 109- 
 111. 
 
 VON H0LST(1875) 
 
 In August, 1823, Rush learned from Canning that the Holy 
 Alliance was beginning to seriously think of interfering in colo- 
 nial affairs in favour of Spain. England's position on the ques- 
 tion had meanwhile substantially changed. If Castlereagh had 
 been willing in 1818 to make the return of the colonies under 
 Spanish dominion the basis of the attempt at intervention, 
 Wellington had by this time used very different language at 
 the congress of Verona, and now Canning declared himself 
 ready to act in direct opposition to the plans of the Holy AUi- 
 
330 MONROE DOCTRINE [Ch. XX 
 
 ance, provided he were assured of the co-operation of the 
 United States. Rush at once forwarded these statements of 
 Canning to his government, which received them with "great 
 satisfaction," for, as Calhouu, the then secretary of war, after- 
 wards declared, the power of the Alliance was so great that the 
 United States themselves had not felt safe from its intermed- 
 dling. Monroe sent the records concerning the matter to all 
 the members of his cabinet, and at the same time asked Jef- 
 ferson for his opinion. The latter answered that "America, 
 North and South," as a result of its own peculiar interests, 
 should also have a peculiar political system, founded on free- 
 dom. It should be a leading principle of the United States 
 "never to suffer Europe to intermeddle with cis-Atlantic 
 affairs." For the attainment of these ends the offered help of 
 England should be accepted, even at the risk of a war. The 
 cabinet, after long and careful consideration, came to the 
 same opinion. Almost at the very moment when Spain for- 
 mally invited the allied powers to a conference in Paris, the 
 president announced in his annual message of Dec. 1, 1823, the 
 so-called Monroe doctrine. 
 
 Hermann E. von Holst, The Constitutional History of the United States. 
 419, 420. 
 
 MORSE (1882) 
 
 The doctrine. which has been christened with the name of 
 President Monroe, seems likely to win for him the permanent 
 glory of having originated the wise policy which that familiar 
 phrase now signifies. . . . Not only is the " Monroe Doctrine " 
 as that phrase is customarily construed in our day, much more 
 comprehensive than the simple theory first expressed by Mon- 
 roe and now included in the modern doctrine as a part in the 
 whole, but a principle more fully identical with the imperial one 
 of to-day had been conceived and shaped by Mr. Adams before 
 the delivery of Monroe's famous message. . . . When discus- 
 sion arose with Russia concerning her possessions on the north- 
 west coast of this continent, Mr. Adams audaciously told the 
 Russian minister. Baron Tuyl, July 17, 1823, "that we should 
 contest the rights of Russia to any territorial establishment on 
 this continent, and that we should assume distinctly the prin- 
 
1875-1883] CRITICAL COMMENT 331 
 
 ciple that the American continents are no longer subjects for 
 any new European colonial establishments." " This," says Mr. 
 Charles Francis Adams in a foot-note to the passage in the 
 Diary, " is the first hint of the policy so well known afterwards 
 as the Monroe Doctrine." ... In a word, Mr. Adams, by his 
 language and actions, established and developed precisely that 
 doctrine which has since been adopted by this country under the 
 doubly incorrect name of the "Monroe Doctrine," — a name 
 doubly incorrect, because even the real "Monroe Doctrine" was 
 not an original idea of Mr. Monroe, and because the doctrine 
 which now goes by that name is not identical with the doctrine 
 which Monroe did once declare. Mr. Adams's principle was 
 simply that the United States would take no part whatsoever in 
 foreign politics, not even in those of South America, save in the 
 extreme event, eliminated from among things possible in this 
 generation, of such an interference as was contemplated by the 
 Holy Alliance ; and that, on the other hand, she would permit 
 no European power to gain any new foothold upon this conti- 
 nent. Time and experience have not enabled us to improve 
 upon the principles which Mr. Adams worked out for us. 
 
 John T. Morse, Jr., John Quincy Adams. 130-137. 
 
 D. C. GILMAN (1883) 
 
 It appears to me probable that Monroe had but little concep- 
 tion of the lasting effect which his words would produce. He 
 spoke what he believed and what he knew that others believed ; 
 he spoke under provocation, and aware that his views might be 
 controverted ; he spoke with authority after consultation with 
 his cabinet, and his words were timely ; but I do not suppose 
 that he regarded this announcement as his own. Indeed, if it 
 had been his own decree or ukase it would have been resented 
 at home quite as vigorously as it would have been opposed 
 abroad. It was because he pronounced not only the opinion 
 then prevalent, but a tradition of other days which had been 
 gradually expanded, and to which the country was wonted, 
 that his words carried with them the sanction of public law. A 
 careful examination of the writings of the eai^lier statesmen of 
 the Republic will illustrate the growth of the Monroe doctrine 
 as an idea dimly entertained at first, but steadily developed by 
 
332 MONROE DOCTRINE [Ch. XX 
 
 the course of public events and the reflection of those in public 
 life. I have not made a thorough search, but some indications 
 of the mode in which the doctrine was evolved have come under 
 my eye which may hereafter be added to by a more persistent 
 investigator. 
 
 The idea of independence from foreign sovereignty was at 
 the beginning of our national life. The term "continental" 
 applied to the army, the congress, the currency, had made 
 familiar the notion of continental independence. This kept 
 in mind the notion of a continental domain. Moreover, in the 
 writings, both public and private, of the fathers of the Repub- 
 lic, we see how clearly they recognized the value of separation 
 from European politics, and of repelling, as far as possible, 
 European interference with American interests. 
 
 Daniel C. Gilman, James Monroe. 161-162. 
 
 SCHOULER (1885) 
 
 This doctrine, so profound of import, was not, we apprehend, 
 the sudden creation of individual thought, but the result rather 
 of slow processes in our public mind, which had been constantly 
 intent upon problems of self-government, and intensely obser- 
 vant of our continental surroundings ; though carried forward, 
 no doubt, like other ideas in the colonial epoch, by the energy 
 and clearer conviction of statesmen who could foresee and link 
 conceptions into a logical chain. Neutralit}'' as to European 
 affairs, freedom from all entangling alliances with the old world, 
 was the legacy of experience which Washington bequeathed to 
 his successors. This might have seemed at first to discourage 
 all external influence, and remit our Union to the selfish and 
 isolated pursuit of its own interests. But the annexation of 
 Louisiana proved that the Union itself was destined to expand 
 over an uncertain area of this continent. And, when, inspired 
 by our example, the Spanish colonies of the American continent 
 were seen one after another to shake off the yoke of the parent 
 country, and spontaneously assert their independence, the phil- 
 anthropic leaders — and none among them so quickly or so 
 persistently as Jefferson — began to predict the fraternal co- 
 operation in the future of these free republics, all modelled 
 alike, in a common scheme for self-preservation which should 
 
1883-1885] CRITICAL COMMENT 333 
 
 shut out Europe, its rulers and its systems of monarchy forever 
 from this hemisphere ; for by such means only could the germ 
 of self-government expand, and the luxuriant growth of this 
 hardy plant make it impossible that the monarchical idea should 
 ever strike a deep root in American soil. . . . AVhen liberty 
 struggled in America we were not — we could not be — neutral. 
 The time of announcement and the choice of expression, never- 
 theless, awaited events, ... It was the courage of a great 
 people personified in a firm chief magistrate that put the fire 
 into those few momentous though moderate sentences, and made 
 them glow like the writing at Belshazzar's feast. . . . 
 
 James Schoulee, History of the United States. III. 289-290. 
 TUCKER (1885) 
 
 The argument that the Monroe Doctrine can have no validity 
 because it has never received legislative sanction, carries with 
 it no weight. Many rules of international law impose an obli- 
 gation derived from usage alone. The original declaration of 
 Mr. Monroe is a precedent acknowledged by the American 
 people, and to a certain extent acquiesced in by European 
 authorities. Hardly a President since Mr. Monroe has omitted 
 to refer to it in language of approval. It has always been 
 regarded as a question independent of party politics, save per- 
 haps in its application to the Congress at Panama. It has been 
 persistently asserted by the majority of American statesmen ; 
 and to declare that it cannot obtain as a universal obligation is 
 practically to throw discredit upon Washington's farewell ad- 
 dress, whose recommendations, though never embodied in stat- 
 utes or approved by resolution of Congress, have frequently 
 shaped the foreign and domestic policy of the government. . . . 
 Finally, the Monroe Doctrine is to America what the Balance 
 of Power is to Europe. The analogy may not be complete, be- 
 cause several nations in Europe unite to preserve a ratio of 
 power, while on this hemisphere the influence of the United 
 States is paramount. But it is this feature which is especially 
 worthy of note. 
 
 George F. Tucker, The Monroe Doctrine. 130-131. 
 
334 MONROE DOCTRINE [Ch. XX 
 
 PRESIDENT CLEVELAND (1895) 
 
 Without attempting extended argument in reply to these po- 
 sitions it may not be amiss to suggest that the doctrine upon 
 which we stand is strong and sound because its enforcement is 
 important to our peace and safety as a nation, and is essential to 
 the integrity of our free institutions and the tranquil maintenance 
 of our distinctive form of government. It was intended to 
 apply to every stage of our national life, and cannot become 
 obsolete while our Republic endui'es. If the balance of power 
 is justly a cause for jealous anxiety among the governments of 
 the old world, and a subject for our absolute non-interference, 
 none the less is an observance of the Monroe Doctrine of vital 
 concern to our people and their Government. 
 
 Assuming, therefore, that we may properly insist upon this 
 doctrine without regard to " the state of things in which we 
 live," or any changed conditions here or elsewhei'e, it is not 
 apparent why its application may not be invoked in the present 
 controversy. 
 
 If a European power, by an extension of its boundaries, 
 takes possession of the territory of one of our neighbouring 
 Republics against its will and in derogation of its rights, it is 
 difficult to see why to that extent such European power does 
 not thereby attempt to extend its sj'^stem of government to 
 that portion of this continent which is thus taken. This is the 
 precise action which President Monroe declared to be " dan- 
 gerous to our peace and safety," and it can make no difference 
 whether the European system is extended by an advance of 
 frontier or otherwise. 
 
 . . . The Monroe doctrine finds its recognition in those 
 principles of international law which are based upon the theory 
 that every nation shall have its rights protected and its just 
 claims enforced. 
 
 Grover Cleveland, Special Message, Dec. 17, 1895. 
 
 OLNEY (1895) 
 
 That there are circumstances under which a nation may 
 justly interpose in a controversy to which two or more other 
 nations are the direct and immediate parties is an admitted 
 canon of iuteruational law. The doctrine is ordiaarily eX' 
 
1895] CRITICAL COMMENT 335 
 
 pressed in terms of the most general character and is jDerhaps 
 incapable of more specific statement. It is declared in sub- 
 stance that a nation may avail itself of this right whenever 
 what is done or proposed by any of the parties primarily con- 
 cerned is a serious and direct menace to its own integrity, 
 tranquillity, or welfare. The propriety of the rule when ap- 
 plied in good faith will not be questioned in any quarter. On 
 the other hand, it is an inevitable though unfortunate conse- 
 quence of the wide scope of the rule that it has only too often 
 been made a cloak for schemes of wanton spoliation and ag- 
 grandizement. We are concerned at this time, however, not so 
 much with the general rule as with a form of it which is pe- 
 culiarly and distinctively American. Washington, in the solemn 
 admonitions of the Farewell Address, explicitly warned his 
 countrymen against entanglements with the politics or the con- 
 troversies of European powers. . . . 
 
 During the administration of President Monroe this doc- 
 trine of the Farewell Address was first considered in all its 
 aspects and with a view to all its practical consequences. 
 The Farewell Address, while it took America out of the field 
 of European politics, was silent as to the part Europe might 
 be permitted to play in America. Doubtless it was thought 
 the latest addition to the family of nations should not make 
 haste to prescribe rules for the guidance of its older members, 
 and the expediency and propriety of serving the powers of 
 Europe with notice of a complete and distinctive American 
 policy excluding them from interference with American politi- 
 cal affairs might well seem dubious to a generation to whom 
 the French alliance, with its manifold advantages to the cause 
 of American independence, was fresh in mind. 
 
 . . . The Monroe administration, however, did not content 
 itself with formulating a correct rule for the regulation of the 
 relations between Europe and America. It aimed at also se- 
 curing the practical benefits to result from the application of 
 the rule. Hence the message just quoted declared that the 
 American continents were fully occupied and were not the 
 subjects for future colonization by European powers. To this 
 spirit and this purpose, also, are to be attributed the passages 
 of the same message which treat any infringement of the rule 
 
336 MONROE DOCTRINE [Ch. XX 
 
 against interference in American affairs on the part of the 
 powers of Europe as an act of unfriendliness to the United 
 States. It was realized that it was futile to lay down such 
 a rule unless its observance could be enforced. It was mani- 
 fest that the United States was the only power in this hemi- 
 sphere capable of enforcing it. It was therefore courageously 
 declared not merely that Europe ought not to interfere in 
 American affairs, but that any European power doing so would 
 be regarded as antagonizing the interests and inviting the op- 
 position of the United States. 
 
 Richard Olney, Letter to Mr, Bayard in Senate Executive Documents, 54 
 Cong. 1 session. (No. 31.) 
 
 WOOLSET (1896) 
 
 But let us look at the real spirit and intent of the Monroe 
 Doctrine. One hesitates to repeat its origin, so often has it 
 been related. The allied powers had twice tried their hand at 
 intervention — in Spain and in Naples. This intervention was 
 in favor of absolutism, not of established government ; for in 
 Naples a liberal movement was put down, in Spain a royalist 
 insurrection was helped up. Emboldened by success, they 
 then proposed to apply their new principles to this conti- 
 nent, and to restore to Spain those colonies of hers which 
 were trying to gain, or had gained, their independence. Then 
 Monroe declared that such intervention would be regarded by 
 the United States as dangerous to itself. He announced a 
 policy. That policy forbade the substitution of monarchical for 
 republican forms of government on this continent by European 
 force. It did not forbid the existence of monarchies here, as 
 Dom Pedro could testify. It did not forbid any step which 
 the republics themselves chose to take, but simply what was 
 forced upon them. It was the policy which fitted the hour 
 and the occasion. It was opportunism. 
 
 The Monroe Doctrine is not a law ; it binds us to no action ; . 
 it was a policy devised to meet a particular case. That case 
 was the forcible substitution of monarchical for republican forms 
 of government in American States by European action. It was 
 an act of self-defence, on no other grounds justifiable. It was 
 not backed by threats of force. 
 
 Theodoee S. Woolsey, Avierica''s Foreign Policy. 223-238. 
 
1895-1898] CRITICAL COMMENT 337 
 
 McMASTER (1897) 
 
 The Monroe Doctrine is a simple and plain statement that 
 the people of the United States oppose the creation of European 
 dominion on American soil ; that they oppose the transfer of 
 the political sovereignty of American soil to European powers ; 
 and that any attempt to do these things will be regarded as 
 " dangerous to our peace and safety." What the remedy 
 should be for such interposition by European powers the doc- 
 trine does not pretend to state. But this much is certain : that 
 when the people of the United States consider anything " dan- 
 gerous to their peace and safety " they will do as other nations 
 do, and, if necessary, defend their peace and safety with force 
 of arms. 
 
 The doctrine does not contemplate forcible intervention by 
 the United States in any legitimate contest, but it will not per- 
 mit any such contest to result in the increase of European 
 power or influence on this continent, nor in the overthrow of 
 an existing government, nor in the establishment of a protec- 
 torate over them, nor in the exercise of any direct control over 
 their policy or institutions. Further than this the doctrine does 
 not go. 
 
 John Bach McMaster, With the Fathers. 45. 
 
 W. F. REDDAWAT (189S) 
 
 In respect to the revolutionists of both hemispheres, then, 
 the Monroe Doctrine is not in perfect harmony with the views 
 of the President as previously expressed in public. It coin- 
 cides, on the other hand, with the consistent teachings of 
 Adams. Its keynote is the sharp political severance of Amer- 
 ica from Europe. In the mouth of Monroe, who had been 
 wont to sound the praise of liberty in Spain, Portugal, and 
 Greece, this rings false. With the strains of Adams it is in 
 perfect harmony. . . . During several years, then, Adams had 
 steadily treated the supremacy of the United States on the 
 continent of North America as an established fact, and the 
 progress of events had caused him to declare their interest in 
 the whole of the New World. The Monroe Doctrine, however, 
 though it announces only that they cannot " behold with indif- 
 
 29 
 
338 MONROE DOCTRINE [Ch. XX 
 
 ference " the extension of the political system of the Allies to 
 any portion of the continent, speaks with warmth of those 
 whom it terms "our Southern brethren." In this respect it 
 savours more of Monroe than of Adams. ... A single phrase, 
 inserted perhaps by the President, or adopted by Adams as a 
 harmless concession to the views of his colleagues, cannot of 
 itself disprove his authority. . . . 
 
 The logical conclusion seems to be that the conception of 
 the Monroe Doctrine and much of its phraseology came from 
 Adams, and that the share of Monroe did not extend beyond 
 revision. . . . 
 
 In insisting upon the right of every people to choose its own 
 form of government without external interference, also, the 
 declaration is affirming but not creating, the Law of Nations. 
 The kernel of this part of the Monroe Doctrine then in its 
 second form as in its first, is a vague declaration of policy and 
 in no way a formulation of rules prevailing between states. . . . 
 No line or paragraph of the Monroe Doctrine, therefore, repre- 
 sents an addition to the body of rules prevailing between States. 
 From the first word to the last, it is a declaration of the policy 
 of a single power. ... 
 
 In its latest development, then, as throughout its history, 
 the Monroe Doctrine has induced confusion of thought. The 
 flood of sentiment and rhetoric poured out on both sides of 
 the Atlantic has in great part obscured the "truth. It has 
 served, none the less, to establish the position of the Monroe 
 Doctrine as a political force, which — however esteemed — 
 must be recognized. Above all, by the Old World and the 
 New, it must be understood. 
 
 William riDDiAN Reddawat, Monroe Doctrine. 82-151. 
 
 HART (1901) 
 
 No one who knows the cautious and somewhat sluggish mind 
 of Monroe could suppose a •priori that he had the genius to meet 
 and counteract the double danger; the real author and probable 
 penman of the famous declaration of 1823 was John Quincy 
 Adams, then Secretary of State. He had already rapped the 
 knuckles of the Russian ambassador on the Oregon question, 
 and he threw all his immense energy into the task of nerving 
 
1898-1901] CRITICAL COMMENT 339 
 
 up the President to a strong announcement. The result was 
 the annual message of December 2, 1823, embodying what was 
 thereafter called "The Monroe Doctrine," the essentials of 
 which are three statements. 
 
 ... It will be seen that the Monroe doctrine was not in- 
 tended by Monroe to be a code of international law, but was 
 called out by a special set of circumstances long since outgrown 
 — aggressions by Russia and by allied Europe. So far as it 
 referred to the future, the doctrine was intended to state a 
 kind of quid pro quo. 
 
 . . . The extension of the term Monroe Doctrine from the 
 limited form given it by John Quincy Adams to that stated by 
 Secretary Olney has of course a reason : there is an apparent 
 advantage, when the United States takes up a position in 
 American diplomacy, in bringing it within the Monroe Doc- 
 trine ; because it may then be urged that foreign powers which 
 ignore or question our positions have had many decades of 
 notice, and hence are sinning against light. But it is impos- 
 sible to appeal to a part of the principle and to ignore the rest; 
 and the history of the doctrine shows absolutely that down to 
 1895 the United States always asserted a special American 
 influence, on the ground that it left to European powers a similar 
 special interest in Europe. This is simply a doctrine of the 
 permanent subdivision of the earth into two spheres of influence, 
 each of which could get on without the other, and in each of 
 which the interference of the other would be unwarranted. 
 There was really no such separation in 1823, and every year 
 draws the ends of the earth closer together. To claim the 
 Monroe Doctrine as still our guiding principle is to suggest 
 to other nations that the United States has no power outside 
 America. The two areas are not separate and never can be 
 separated; the United States is a world power, and cannot 
 claim the special privileges of a diplomatic recluse, and at the 
 same time the mastery of the Western Hemisphere. 
 
 Albert Bushnell Haet, The Monroe Doctrine, in Harper's Monthly, 
 1901. 
 
340 EMANCIPATION [Ch. XXI 
 
 Chapter XXI 
 THE RIGHTS OF SLAVES AND OF THEIR RACE (1857) 
 
 SUGGESTIONS 
 
 The Dred Scott Decision was pronounced on the 6th of March, 1857. 
 The following excerpts are chosen from the reports made by Chief- 
 Justice Taney, and the dissenting opinion delivered by Justice 
 Curtis. 
 
 The interest which gathers about the question of slavery and its 
 eventual death-blow has to this generation of students a purely historic 
 bearing ; but that slavery did exist, and that it was possible for the 
 Chief Justice of the Supi-eme Court to defend it in an official report, 
 makes the study of one of the most famous decisions of the Court a 
 necessary preparation for the later investigation of the enfranchise- 
 ment of the coloured race. In examining the opinion of the Court, 
 we are amazed that less than fifty years ago such conditions could 
 have existed. To appreciate fully these discussions for and against 
 the Dred Scott Decision, it is necessary to study into the Northern 
 and Southern points of view, and to investigate the social condi- 
 tions, and the moral energy which had their share in shaping the 
 doctrines and politics of the respective leaders in this great issue. 
 
 For Outlines and Analysis, see Appendix B, § 6. 
 
 DOCUMENTS 
 
 Extracts from the Opinion of the Court in the Dred Scott Decision, 
 March 6th, 1857 
 
 The text is Mr. Chief Justice Roger B. Taney delivered the 
 *™°^ 19 How- opinion of the Court. 
 
 ard, 399. ^^^ . , , . -,.,., 
 
 Dred Scott, a This case has been twice argued. After the ar- 
 
 slave born in gument at the last term, differences of opinion were 
 havino- lived fo^^^cl to exist among the members of the Court ; 
 north of the and as the questions in controversy are of the high- 
 
1857] TEXT 341 
 
 est importance, and the Court was at that time Missouri line 
 much pressed by the ordinary business of the term, ^.g 
 it was deemed advisable to continue the case, and claimed his 
 direct a re-argument on some of the points, in order ^ q^°™' 
 that we might have an opportunity of giving to the Sandford, 
 whole subiect a more deliberate consideration. It ^^^ had _ 
 
 DGCOniG Ills 
 
 has accordingly been again argued by counsel, and titular owner 
 
 considered by the Court ; and I now proceed to after his re- 
 ■1 T ., . . turn south of 
 
 deliver its opinion. ^^^ compro- 
 
 There are two leading questions presented by the mise line. 
 
 record: n^^ w a!- 
 
 ^ ^ , TT • T o Court of Mis- 
 
 1. Had the Circuit Court of the United otates souri decided 
 iurisdiction to hear and determine the case between i^ his favour. 
 ., .-0*1 The Supreme 
 these parties? And Court of Mis- 
 
 2. If it had jurisdiction, is the judgment it has souri re- 
 given erroneous or not? ^ _ decision, and 
 
 The plaintiff iu error, who was also the plaintiff remanded 
 in the Court below, was, with his wife and children, ^^ ^^'^• 
 held as slaves by the defendant, in the State of is53, Dred 
 Missouri ; and he brought this action in the Circuit Scott entered 
 Court of the United States for that district, to assert gandtord in 
 the title of himself and his family to freedom. Circuit Court 
 
 The declaration is in the form usually adopted in gtatifs^"^^^'^ 
 that State to try questions of this description, and Sandford de- 
 contains the averment necessary to give the Court ^i*^!^ ^}}^ 
 
 iiirisclic- 
 jurisdiction; that he and the defendant are citizens tion — but 
 
 of different States ; that is, that he is a citizen of tl^ Court ^ 
 
 Missouri, and the defendant a citizen of New York. ^^-^^ ^j^^^ ^^_ 
 
 The defendant pleaded in abatement to the juris- cided against 
 
 diction of the Court, that the plaintiff was not a ^nthe^round 
 
 citizen of the State of Missouri, as alleged in his of the deci- 
 
 declaration, being a negro of African descent, whose ^^i^^^l^^^^ 
 
 ancestors were of pure African blood, and who were higher Court. 
 
 brouo;ht into this country and sold as slaves. "^ ^^^^ ^^® 
 
 .1 , . . T ^ , T case came up 
 
 To this plea the plaintiff demurred, and the de- in the Su- 
 
 fendant joined in demurrer. The Court overruled preme Court 
 
 the plea, and gave judgment that the defendant grates to 
 
 should answer over. And he therefore put in sun- which Dred 
 
 dry pleas in bar, upon which issues were joined ; gnallv an- 
 
342 
 
 EMANCIPATION 
 
 [Ch. XXI 
 
 pealed, and 
 decision was 
 rendered in 
 March, 1857. 
 
 Constitution, 
 Art. iv. sect. 
 
 2. 
 
 Constitution, 
 Art. iv. sect. 
 2, §§ 1, 2, 3. 
 
 and at the trial the verdict and judgment were in 
 his favor. Whereupon the plaintiff brought this 
 writ of error. 
 
 Before we speak of the pleas in bar, it will be 
 proper to dispose of the questions which have arisen 
 on the plea in abatement. 
 
 That plea denies the right of the plaintiff to sue 
 in a court of the United States, for the reasons 
 therein stated. 
 
 If the question raised by it is legally before us, 
 and the Court should be of opinion that the facts 
 stated in it disqualify the plaintiff from becoming a 
 citizen, in the sense in which that word is used in 
 the Constitution of the United States, then the judg- 
 ment of the Circuit Court is erroneous, and must be 
 reversed. 
 
 It is suggested, however, that this plea is not 
 before us ; and that as the judgment in the Court 
 below on this plea was in favor of the plaintiff, he 
 does not seek to reverse it, or bring it before the 
 Court for revision by his writ of error ; and also 
 that the defendant waived this defence by pleading 
 over, and thereby admitted the jurisdiction of the 
 Court. . . . 
 
 The words ' people of the United States ' and 
 ' citizens ' are synonymous terms, and mean the 
 same thing. They both describe the political body 
 who, according to our republican institutions, form 
 the sovereignty, and who hold the power and con- 
 duct the government through their representatives. 
 They are what we familiarly call the ' sovereign 
 people,' and every citizen is one of this people, 
 and a constituent member of this sovereignty. The 
 question before us is, whether the class of persons 
 described in the plea in abatement compose a por- 
 tion of this people, and are constituent members of 
 this sovereignty? We think they are not, and that 
 they are not included, and were not intended to be 
 included, under the word ' citizen ' in the Consti- 
 
1857] TEXT 343 
 
 tution, and can therefore claim none of the rights 
 and privileges which that instrument provides for 
 and secures to citizens of the United States. 
 
 On the contrary, ih^y were at that time consid- 
 ered as a subordinate and inferior class of beings, 
 who had been subjugated by the dominant race, "Three fifths 
 
 and, whether emancipated or not, yet remained ^^ other 
 
 ' . , ^ . 1,1 persons." 
 
 subject to their authority, and had no rights or Constitution, 
 
 privileges but such as those who held the power and ^^^- '• ^^^*'- 
 
 the government might choose to grant them. ' ^ 
 
 It is not the province of the Court to decide upon 
 the justice or injustice, the policy or impolicy, of 
 these laws. The decision of that question belonged 
 to the political or law-making power ; to those who 
 formed the sovereignty and framed the Constitution. 
 The duty of the Court is, to interpret the instrument Constitution, 
 they have framed, with the best lights we can obtain ^'"K"^" ^^^^' 
 on the subject, and to administer it as we find it, 
 according to its true intent and meaning when it 
 was adopted. 
 
 In discussing this question, we must not confound 
 
 the rights of citizenship which a State may confer 
 
 within its own limits, and the rights of citizenship 
 
 as a member of the Union. It does not by any 
 
 means follow, because he has all the rights and 
 
 privileges of a citizen of a State, that he must be a Fourteenth 
 
 citizen of the United States. He may have all of amendment 
 -I . .1 ,. ji • • J? 1-1 to the Con- 
 
 the rights and privileges or the citizen or a State stitution 
 
 and yet not be entitled to the rights and privileges makes it so. 
 
 of a citizen in any other State. For, previous to the 
 
 adoption of the Constitution of the United States, 
 
 every State had the undoubted right to confer on 
 
 whomsoever it pleased the character of citizen, and 
 
 to endow him with all its rights. But this charac- Articles of 
 
 ter of course was confined to the boundaries of ^^ ^^^^^^ 
 
 the State, and gave him no rights or privileges in 
 
 other States beyond those secured to him by the 
 
 laws of nations and the comity of States. 
 
 No one, we presume, supposes that any change 
 
344 EMANCIPATION [Ch. XXI 
 
 England in public opinion or feeling in relation to this unfor- 
 
 abolished tunate race, in the civilized nations of Europe or in 
 
 1833- the ^^is country, should induce the courts to give to the 
 
 purchase- words of the Constitution a more liberal construc- 
 
 bv^Great^^" tion in their favor than they were intended to bear 
 
 Britain to when the instrument was framed and adopted. Such 
 
 the slave- argument would be altogether inadmissible in any 
 
 owners was ^ . ° . -, „ . 
 
 20,000,000/. tribunal called on to mterpret it. If any of its 
 
 provisions are deemed unjust, there is a mode pre- 
 scribed in the instrument itself by which it may be 
 amended ; but while it remains unaltered, it must 
 be construed now as it was understood at the time 
 Const. Art. v. of its adoption. It is not only the same in words 
 but the same in meaning, and delegates the same 
 power to the government and reserves and secures 
 the same rights and privileges to the citizen ; and, 
 as long as it continues to exist in its present form, 
 it speaks not only with the same words, but with 
 the same meaning and intent with which it spoke 
 when it came from the hands of its framers, and 
 was voted on and adopted by the people of the 
 United States. Any other rule of construction 
 would abrogate the judicial character of this Court, 
 and make it the mere reflex of the popular opinion 
 or passion of the day. This Court was not created 
 by the Constitution for such purposes. Higher and 
 graver trusts have been confided to it, and it must 
 not falter in the path of duty. 
 This dictum What the construction was at that time, we think 
 fiiUyTnfuted ^^^ bardly admit of doubt. We have the language 
 by George of the Declaration of Independence and of the 
 Liyermore, Articles of Confederation, in addition to the plain 
 
 JrL istovic(xi 
 
 Research. words of the Constitution itself ; we have the legis- 
 
 lation of the different States, before, about the 
 time, and since, the Constitution was adopted ; we 
 have the legislation of Congress, from the time of 
 its adoption to a recent period ; and we have the 
 constant and uniform action of the executive de- 
 partment, all concurring together, and leading to 
 
1857] TEXT 345 
 
 the same result. And if anything in relation to the 
 
 construction of the Constitution can be regarded as 
 
 settled, it is that which we now give to the word 
 
 " citizen " and the word " people." 
 
 And upon a full and careful consideration of the 
 
 subject, the Court is of opinion, that, upon the 
 
 facts stated in the plea in abatement, Dred Scott 
 
 was not a citizen of Missouri within the meaning of 3?^^ '^,^'^'^1^°^ 
 , „ . . J! , TT • 1 fi ^^^^ the Cir- 
 
 the Constitution oi the United States, and not en- cuit Court 
 
 titled as such to sue in its courts : and, consequeutlv, ^^.^'l."^ juris- 
 ., ^ ^, ^. -1. r^ i 1 • . T ,• ^ ," diction of 
 
 that the Circuit Court has no jurisdiction of the the case was 
 
 case, and that the judgment on the plea in abate- of course ad- 
 . • verse to Dred 
 
 ment is erroneous. . . . Scott 
 
 Now, as we have already said in an earlier part 
 
 of this opinion, upon a different point, the right of 
 
 property in a slave is distinctly expressed and 
 
 affirmed in the Constitution. The right to traffic 
 
 in it, like an ordiuary article of merchandise and 
 
 property, was guaranteed to the citizens of the 
 
 United States, in every State that might desire it, 
 
 for twenty years. And the government in express Const. Art. i. 
 
 terms is pledged to protect it in all future time, if ^®^*'" ^' § ^• 
 
 the slave escapes from his owner. This is done in 
 
 Const Art 
 plain words — too plain to be misunderstood. And jy_ ggg(- 2 
 
 no word can be found in the Constitution which § 2. 
 gives Congress a greater power over slave property, 
 or which entitles property of that kind to less pro- 
 tection than property of any other description. The 
 only power conferred is the power coupled with the 
 duty of guarding and protecting the owner in his 
 rights. 
 
 Upon these considerations, it is the opinion of 
 the Court that the Act of Congress which prohibited 
 a citizen from holding and owning property of this 
 kind in the territory of the United States north of " Missouri 
 
 the line therein mentioned, is not warranted by Compro- 
 
 . ' "^ mise ' held 
 
 the Constitution, and is therefore void; and that vmconstitu- 
 neither Dred Scott himself, nor any of his family, tional. 
 were made free by being carried into this terri- 
 
346 
 
 EMANCIPATION 
 
 [Ch. XXI 
 
 tory; even if they had been carried there by the 
 owner, with the intention of becoming a permanent 
 resident. 
 
 See Const. 
 Art. iv. sect. 
 2, Arts, of 
 Confed., ii. 
 
 Note Decla- 
 ration of In- 
 dependence. 
 
 Extract from Justice Benjamin R. Curtis, dis- 
 senting. 
 
 I dissent from the opinion pronounced by the 
 Chief Justice, and from the judgment which the 
 majority of the court think it proper to render iu 
 this case. . . . 
 
 One mode of approaching this question is, to in- 
 quire who were citizens of the United States at the 
 time of the adoption of the Constitution. 
 
 Citizens of the United States at the time of the 
 adoption of the Constitution can have been no 
 other than citizens of the United States under the 
 Confederation. By the Articles of Confederation, 
 a Government was organized, the style whereof 
 was, ' The United States of America.' This Gov- 
 ernment was in existence when the Constitution 
 was framed and proposed for adoption, and was 
 to be superseded by the new Government of the 
 United States of America, organized under the Con- 
 stitution. When, therefore, the Constitution speaks 
 of citizenship of the United States, existing at the 
 time of the adoption of the Constitution, it must 
 necessarily refer to citizenship under the Govern- 
 ment which existed prior to and at the time of such 
 adoption. 
 
 Without going into any question concerning the 
 powers of the Confederation to govern the territory of 
 the United States out of the limits of the States, and 
 consequently to sustain the relation of Government 
 and citizen in respect to the inhabitants of such ter- 
 ritory, it may safely be said that the citizens of the 
 several States were citizens of the United States 
 under the Confederation. . . . 
 
 Did the Constitution of the United States deprive 
 them or their descendants of citizenship ? 
 
1857] TEXT 347 
 
 That Constitution was ordained and established by 
 the people of the United States, through the action, 
 in each State, of those persons who were qualified Through the 
 by its laws to act thereon, in behalf of themselves ratification 
 
 ■1 ,, , ■ • i- I n r ^ <^f the Con- 
 
 and all other citizens of that State, in some of the stitution. 
 
 States, as we have seen, colored persons were among 
 
 those qualified by law to act on this subject. These Instanced by 
 
 colored persons were not only included in the body ^-^^^^ Massa- 
 
 of ' the people of the United States,' by whom the chusetts, 
 
 Constitution was ordained and established, but in S^*^^ York, 
 
 at least five of the States they had the power to act, and North ' 
 
 and doubtless did act, by their suffrages, upon the Carolina, 
 
 question of its adoption. It would be strange, if ^^gj-g ^f ^j^g" 
 
 we were to find in that instrument anything which colored race 
 
 deprived of their citizenship any part of the people ^^Iv citizens 
 
 of the United States who were among those by but many of 
 
 whom it was established. ^^p"^ ^f? *'^^ 
 
 T r-T . .i/-(i-- !•! irancnise 
 
 1 can find nothing in the Constitution which, of electors." 
 
 proprio vigors, deprives of their citizenship any 
 class of persons who were citizens of the United 
 States at the time of its adoption, or who should 
 be native-born citizens of any State after its adop- 
 tion ; nor any power enabling Congress to disfran- 
 chise persons born on the soil of any State, and 
 entitled to citizenship of such State by its Constitu- 
 tion and laws. And my opinion is, that, under the 
 Constitution of the United States, every free per- 
 son born on the soil of a State, who is a citizen of 
 that State by force of its Constitution or laws, is 
 also a citizen of the United States. 
 
 The conclusions at which I have arrived on this 
 part of the case are : 
 
 First. That the free native-born citizens of each citizensbip. 
 State are citizens of the United States. 
 
 Second. That as free colored persons born within 
 some of the States are citizens of those States, such zensbip. 
 persons are also citizens of the United States. 
 
348 
 
 EMANCIPATION 
 
 [Ch. XXI 
 
 Eights of 
 citizenship. 
 
 Tliis refers 
 to the ground 
 taken by 
 Taney that 
 all territory 
 acquired 
 after the 
 year 1787 
 was under 
 the constitu- 
 tional law 
 of the coun- 
 try. Hence, 
 citizenship 
 from the 
 Federal Gov- 
 ernment 
 could not 
 extend to 
 the new 
 territories. 
 
 Louisiana 
 Purchase. 
 
 Third. That every such citizen, residing in any 
 State, has the right to sue and is liable to be sued 
 in the Federal courts, as a citizen of that State in 
 which he resides. 
 
 Fourth. That as the plea to the jurisdiction in 
 this case shows no facts, except that the plaintiff 
 was of African descent, and his ancestors were sold 
 as slaves, and as these facts are not inconsistent 
 with his citizenship of the United States, and his 
 residence in the State of Missouri, the plea to the 
 jurisdiction was bad, and the judgment of the Circuit 
 Court overruling it was correct. 
 
 I dissent, therefore, from that part of the opinion 
 of the majority of the court, in which it is held that 
 a person of African descent cannot be a citizen of 
 the United States ; and I regret I must go further, 
 and dissent both from what I deem their assumption 
 of authority to examine the constitutionality of 
 the act of Congress commonly called the Missouri 
 Compromise act, and the grounds and conclusions 
 announced in their opinion. 
 
 I consider the assumption which lies at the basis 
 of this theory to be unsound ; not in its just sense, 
 and when properly understood, but in the sense 
 which has been attached to it. That assumption 
 is, that the territory ceded by France was acquired 
 for the equal benefit of all the citizens of the United 
 States. I agree to the position. But it was acquired 
 for their benefit in their collective, not their individ- 
 ual, capacities. It was acquired for their benefit, 
 as an organized political society, subsisting as ' the 
 people of the United States,' under the Constitu- 
 tion of the United States ; to be administered 
 justly and impartially, and as nearly as possible for 
 the equal benefit of every individual citizen, accord- 
 ing to the best judgment and discretion of the Con- 
 gress ; to whose power, as the Legislature of the 
 nation which acquired it, the people of the United 
 States have committed its administration. 
 
1857] CONTEMPORARY EXPOSITION 349 
 
 Nor in my judgment, will the position, that a pro- 
 hibition to bring slaves into a Territory deprives any 
 one of his property without due process of law, bear S^e Magna 
 examination. 39_ 
 
 It must be remembered that this restriction on See Con- 
 
 the legislative power is not peculiar to the Constitu- ct^rtarum 
 
 tion of the United States ; it was borrowed from Art. I. 
 
 Magna Charta ; was brought to America by our "^f ^t^^^w*^? o 
 ff 1 • . 1 . T Ti of Eight, § 2. 
 
 ancestors, as part of their inherited liberties, and See Bill of 
 
 has existed in all the States, usually in the very lights, Art. 
 
 words of the great charter. 
 
 CONTEMPORARY EXPOSITION 
 
 BENTON (1857) 
 
 From the day of becoming a landholder, the old Continental 
 Congress first, and the Federal Congress since, have exercised 
 the right of every other landholder to prevent trespasses, intru- 
 sions, and settlements upon their territory, expelling with mili- 
 tary force, and punishing with fine and damages, the violater of 
 its rules. 
 
 This began under the Confederation, and has continued ever 
 since. All the old settlers on the frontiers can remember the 
 dragooning the settlers on the United States territory, driving 
 them off, and destroying their houses and growing crops. All 
 can remember the old familiar operation of cutting up a Ter- 
 ritory, running a line through it, giving one half to the Indians, 
 and driving the white people from it, and their slaves also. 
 Such is the power which Congress exercises over its territory, 
 and with which the Constitution has nothing to do. 
 
 To sum up, in a few words, the results of this Examination, 
 and to present the conclusions under a single view, and it is 
 shown that the Constitution was not made for Territories, and 
 does not include them — that it cannot be extended to them by 
 law, and if it could, would be barren and fruitless without law 
 to put it into operation — that no law could be made under 
 it to give any help to the slaveholder, either in recovering his 
 propert}^, if the slave ran away, or in bringing back for justice 
 
350 EMANCIPATION [Ch. XXI 
 
 the fugitive felon that should steal it; or in getting protec- 
 tion from the Federal Government against revolt, or in that 
 acknowledgment of property in the slave which results from his 
 federal taxation. In no one of these cases, nor in any other 
 one which can be imagined, can any law be made under the 
 Constitution to help the slave-owner, for every provision in 
 that instrument which relates to slavery is confined to States ; 
 and the owner must be thrown upon the ordinance of 1787, 
 and the power of Congress, independent of the Constitution, 
 for every species of protection which he may need about that 
 property. 
 
 I have performed an unpleasant task, but unavoidable. I 
 have been on the kindest personal terms with the judges, and 
 in my long senatorial service, and as part of the appointing 
 power, have cordially given my voice for the elevation of each 
 of them to the honourable stations they hold — for every one 
 except Mr. Justice Curtis, appointed since the termination of 
 my service. I am a friend to the Supreme Court as an institu- 
 tion — as a high and essential part of our system — and would 
 not willingly derogate from its respect, or impair its utility. 
 But the whole system, of which it is a part, and the whole 
 people, of whom its members are a few, are overruling consid- 
 erations ; and the evil of the late decision being actually upon 
 us, going into parties, entering into elections, giving the rule 
 for the appointment of all future federal judges, establishing a 
 new party test, bringing the federal judiciary into the vortex of 
 federal politics, and developing still more strongly the geogra- 
 phical line which divides us ; seeing all these evils now upon us, 
 and others to come, I have found it impossible to remain silent, 
 or to have said less. I am among the last of those who, acting 
 with the generations that are passed, still adhere to their teach- 
 ings. I labour to preserve what they established, lamenting that 
 the task had not fallen into abler hands. A few years earlier, 
 and the preservation of the Missouri Compromise would have 
 found its adequate defender in one of its greatest architects, 
 and the integrity of the Constitution would have found its 
 champion in its great expounder; but Clay and Webster are 
 gone ; and, before them, went Pinckney and Lowndes, gloriously 
 identified with the work which recent hands have just torn 
 
1857-1862] CONTEMPORARY EXPOSITION 351 
 
 down. And of those who survive, and who stood by them in 
 their great efforts, and still stand where they stood, I am one 
 of the few — no longer in power, but still in armour when the 
 works of our fathers are in danger. I write for no party, but 
 for all men who venerate the works of our ancestors, and who 
 wish to see our Government kept on the foundations on which 
 they placed it. 
 
 Thomas H. Benton, Examination of the Supreme Court's Decision in the 
 Dred Scott Case. 128, 130. 
 
 BANCROFT (1862) 
 
 That ill-starred disquisition is the starting-point of this re- 
 bellion, which, for a quarter of a century, had been vainly 
 preparing to raise its head. " When courts of justice fail, war 
 begins." The so-called opinion of Taney, who, I trust, did not 
 intend to hang out the flag of disunion, that rash offence to the 
 conscious memory of the millions, upheaved our country with 
 the excitement which swept over those of us who vainly hoped 
 to preserve a strong and sufficient though narrow isthmus that 
 might stand between the conflicting floods. No nation can 
 adopt that judgment as its rule, and live : the judgment has in 
 it no element of political vitality. I will not say it is an invo- 
 cation of the dead past : there never was a past that accepted 
 such opinions. If we want the opinions received in the days 
 when our Constitution was framed, we will not take them 
 second-hand from our Chief-Justice : we will let the men of that 
 day speak for themselves. How will our American magistrate 
 sink, when arraigned, as he will be, before the tribunal of 
 humanity ! How terrible will be the verdict against him, when 
 he is put in comparison with Washington's political teacher, the 
 great Montesquieu, the enlightened magistrate of France, in 
 what are esteemed the worst days of her monarchy ! The argu- 
 ment from the difference of race which Taney thrusts forward 
 with passionate confidence, as a proof of complete disqualifica- 
 tion, is brought forward by Montesquieu as a scathing satire on 
 all the brood of despots who were supposed to uphold slavery 
 as tolerable in itself. The rights of mankind — that precious 
 word which had no equivalent in the language of Hindostan, or 
 Judaea, or Greece, or Rome, or any ante-Christian tongue — found 
 
352 EMANCIPATION [Ch. XXI 
 
 their supporter in Washington and Hamilton, in Franklin and 
 Livingston, in Otis, George Mason, and Gadsden ; in all the 
 greatest men of our early history. The one rule from which 
 the makers of our first Confederacy, and then of our national 
 Constitution, never swerved, is this : to fix no constitutional 
 disability on any one. Whatever might stand in the way of 
 any man, from opinion, ancestry, weakness of mind, inferiority 
 or inconvenience of any kind, was itself not formed into a 
 permanent disfranchisement. The Constitution of the United 
 States was made under the recognized influence of " the eternal 
 rule of order and right; " so that, as far as its jurisdiction ex- 
 tends, it raised at once the numerous class who had been 
 chattels into the condition of persons : it neither originates nor 
 perpetuates inequality. 
 
 George Bancroft, Pulpit and Rostrum. 104-107. 
 
 GREELEY (1865) 
 
 Chief Justice Taney, in pronouncing the decision of the 
 Court, which nullified the Missouri Restriction, or any restric- 
 tion by Congress on the boundless diffusion of Slavery through- 
 out the territories of the Union, commenced by denying to Dred 
 Scott, or to any person " whose ancestors were imported to this 
 country and sold as slaves," any right to sue in a court of the 
 United States. . . . 
 
 The Chief Justice proceeds to afl5rm, not only that no per- 
 sons who had been, or whose ancestors had been, slaves, were 
 regarded as citizens previously to, or at the time of, adopting 
 the Federal Constitution, but that no State has, or can have, 
 any right to confer citizenship on such persons. Bearing in 
 mind the citations from our revolutionary and po.st-revolution- 
 ary history, . . . the reader will be puzzled to decide whether 
 Law, Humanity, or History, is most flagrantly defied. . . . The 
 immortal language of the preamble to the Declaration of Inde- 
 pendence, wherein "life, liberty, and the pursuit of happiness," 
 are proclaimed the self-evident, inalienable rights of all men, 
 might well stagger the most brazen and subtle attorney, but 
 not a case-hardened Chief Justice. . . . Justice Curtis is an 
 ultra conservative of the State-street (Boston) school — a life- 
 long follower of Mr. Webster. . „ . 
 
1862-1877] CONTEMPORARY EXPOSITION 353 
 
 Though couched in judicial and respectful language, it con- 
 stantly, and pretty clearly, intimates not merely that the judg- 
 ment of the Court is contrary both to law and to fact, but that 
 its authors well knoio such to be the case. . . . Judge Curtis 
 says: "It has been often asserted that the Constitution was 
 made exclusively by and for the white race. It has already 
 been shown that, in five of the thirteen original States, coloured 
 persons then possessed the elective franchise, and were among 
 those by whom the Constitution was ordained and established. 
 If so, it is not true, in point of fact, that the Constitution was 
 made exclusively hy the white race. And that it was made 
 exclusively for the white race is, in my opinion, not only an 
 assumption not warranted by anything in the Constitution, but 
 contradicted by its open declaration, that it was ordained and 
 established by the people of the United States, for themselves 
 and their posterity. And, as free coloured persons were then 
 citizens of at least five States, and so, in every sense, part of the 
 people of the United States, they were among those for whom and 
 whose posterity the Constitution was ordained and established." 
 
 Horace Greeley, The American Conflict, a History of the Great 
 Rebellion. I. 253-262, passim. 
 
 WILSON (1877) 
 
 The dissenting opinion of Justice Curtis was very decided, 
 thorough, fortified by an impregnable arra}' of authorities, and, 
 from his well-known conservatism, worthy of special notice. 
 In reply to the assertion of the majority that the negro was 
 not a " citizen," he asserted that " the citizens of the several 
 States were citizens of the United States under the confedera- 
 tion," and he instanced the fact that all free native-born in- 
 habitants of the States of New Hampshire, Massachusetts, 
 New York, New Jersey, and North Carolina, though descended 
 from African slaves, were not only " citizens," but many of 
 them had "the franchise of electors." . . . Nor did the fact 
 that in some States they were deprived of some of the rights 
 possessed by the whites militate against their citizenship. " The 
 truth is," said Judge Curtis, "that citizenship, under the Con- 
 stitution of the United States, is not dependent on the posses- 
 sion of any particular political or even of any civil rights." 
 
 Henry Wilson, Rise and Fall of the Slave Power in America. II. 530. 
 
 23 
 
354 EMANCIPATION [Ch. XXI 
 
 CRITICAL COMMENT 
 
 VON HOLST (1875) 
 
 Not only was there no need of the decree [Taney's decision 
 as to the constitutional law respecting citizenship], but it was 
 against right and issued confessedly on political grounds. The 
 opinions of the majority differed from one another in their argu- 
 mentation, and to some extent in their concessions, so widely 
 that, taken together, they constituted an inextricable tangle, 
 and two of the judges not only opposed the chief justice on 
 one point after another, but the severest moral condemnation 
 could be heard in their juridico-historical deductions, spite 
 of their calmness and strict pragmatism. 
 
 Hermann E. von Holst, Constitutional and Political History of the United 
 States. VI. 45, 46. 
 
 SCHOULER (1891) 
 
 The defendant slave-holder pleaded to the circuit jurisdic- 
 tion that Dred Scott was not in any case " a citizen entitled to 
 sue," because a negro of African descent; that plea the court 
 overruled, and, in May, 1854, sent the case to a jury, in accord- 
 ance with whose verdict judgment was rendered that the plain- 
 tiff was still properly a slave; and then the whole record went 
 on final appeal to the tribunal in Washington. Not referees, 
 to be sure, at their own instance, the nine silk gowns, all 
 Democrats but one, and five of them from the States where 
 colour presumed servitude, listened patiently to the arguments 
 of counsel favourable to one political aspect of the case or 
 another. Argued at the winter term which preceded this last 
 Presidential canvass, reargued at the next term following the 
 election, this case was not decided till the churn of legislation 
 overhead had ceased and the President-elect was inducted into 
 office ; after which, the oracle which Southern statesmen behind 
 the scenes had been trying for many weeks to pry open was 
 gravely unsealed. 
 
 It was an extraordinary decision, certainly, for the third 
 quarter of the nineteenth century, and extraordinary in more 
 senses than one. . . . 
 
1875-1891] CRITICAL COMMENT 355 
 
 Melancholy must have been the spectacle in this cavern of 
 justice, through whose eastern windows glanced the sunbeams 
 as into some mausoleum, when the Chief Justice, a man of frail 
 and attenuated frame, read to a large audience of the bar, in 
 a low tone of voice almost inaudible, the majority opinion pre- 
 pared by himself. Elaborate, adroitly put together and cruel, 
 it doomed the African of this age by the standard of three 
 centuries ago, — exploring musty and worm-eaten codes, and 
 announcing far too broadly that, at the date our Federal Con- 
 stitution was adopted, negroes had been and were still regarded 
 as beings of an inferior order, " and so far inferior that they 
 had no rights which the white man was bound to respect." 
 That curdling phrase was not forgotten; and, though Taney 
 uttered it merely as an historical conclusion, our people believed 
 it to express the real sentiment entertained by himself and his 
 Southern colleagues on the bench towards the oppressed ; and 
 in that sense they interpreted it. Taney had many admirable 
 traits of character, being learned in the law, painstaking, up- 
 right, and full of dignity ; that he could take odium unflinch- 
 ingly he had shown when, as Jackson's secretary he removed 
 the deposits. But he was wanting in the flow of healthy blood, 
 and henceforth to a large fraction of Americans he seemed 
 almost a vampire, hovering in the dim twilight. Not difflcult 
 was it to rake together a heap of rubbish testimony from 
 colonial acts, the writings of European publicists, and the 
 statute-books moreover of our original thirteen States. But 
 where was the clear letter of the Constitution that set an 
 eternal doom upon the inheritors of an Ethiopian skin? For 
 Indians, it was admitted, the red race, were placed in no such 
 unfortunate category. Where was the rising sun of the Ameri- 
 can revolution, to dissipate this festering mass of misconcep- 
 tion? Where were the hopes, the wishes, cherished by Franklin, 
 by Washington, by Jefferson, Adams, Hamilton, Madison, and 
 all the chief framers and expounders of our perfected Federal 
 system, under whose benign influence freedom was carried into 
 new territories ? 
 
 James Schoulee, History of the United States. V. 378-380. 
 
356 EMANCIPATION [Ch. XXI 
 
 RHODES (1893) 
 
 The opinion of Taney was but the doctrine of Calhoun, 
 announced for the first time in 1847, and now embodied in a 
 judicial decision. . . . Only by the conviction that slavery was 
 being pushed to the wall, in conjunction with subtle reason- 
 ing like that of Calhoun, who tried to obstruct the onward 
 march of the century by a fine-spun theory, could a sentiment 
 have been created which found expression in this opinion of 
 Taney, outraging as it did precedent, history, and justice. 
 
 That Taney committed a grievous fault is certain. He is 
 not to be blamed for embracing the political notions of John 
 C. Calhoun; his environment gave that shape to his thoughts; 
 but he does deserve censure because he allowed himself to 
 make a political argument, when only a judicial decision was 
 called for. . . . Nothing but an imperative need should have 
 led judges, by their training and position presumably con- 
 servative, to unsettle a question that had so long been acqui- 
 esced in. The strength of a constitutional government lies in 
 the respect paid to settled questions. . . . 
 
 If Taney spoke for Calhoun, Curtis spoke for Webster. . . . 
 If Taney furnished arguments for the Democrats, Curtis showed 
 that the aim of the Republicans was constitutional. . . . 
 
 Justice Curtis rose to the height of the situation, and in 
 his opinion gave the key-note to the constitutional argument 
 against the opinion of the court being in any way binding on 
 the political consciences of the people. . . . 
 
 Not Republicans alone saw the matter in this light under the 
 guidance of so earnest and able a jurist. 
 
 James Ford Rhodes, History of the United States. II. 260-263. 
 BRTOE (189G) 
 
 Whenever the Constitution has conferred a power of legis- 
 lating upon Congress, the Court declines to inquire whether 
 the use of the power was in the case of a particular statute 
 passed by Congress either necessary or desirable, or whether 
 it was exerted in a prudent manner, for it holds all such matters 
 to be within the exclusive province of Congress. . . . 
 
 Adherence to this principle has enabled the Court to avoid 
 
1893-1896] CRITICAL COMMENT S57 
 
 an immixture in political strife which must have destroyed its 
 credit, has deterred it from enteriug the political arena, where 
 it could have been weak, and enabled it to act without fear in 
 the sphere of pure law, where it is strong. . . . Occasionally, 
 however, it has been required to give decisions which have 
 worked with tremendous force on politics. The most famous 
 of these was the Dred Scott case, in which the Supreme Court, * 
 on an action by a negro for assault and battery against the 
 person claiming to be his master, declared that a slave taken 
 temporarily to a free State and to a Territory in which Con- 
 gress had forbidden slavery, and afterwards returning into a 
 slave State and resuming residence there, was not a citizen 
 capable of suing in the Federal courts if by the laws of the 
 slave State he was still a slave. This was the point which 
 actually called for a decision ; but the majority of the court, 
 for there was a dissentient minority, went further, and deliv- 
 ered a variety of dicta on various other points touching the 
 legal status of negroes, and the constitutional view of slavery. 
 James Bryce, American Commonwealth^ 189, 190. 
 I Copyright, 1896, by the Macmillan Co. 
 
358 PROCLAMATION OF EMANCIPATION [Ch. XXII 
 
 Chapter XXII 
 EMANCIPATION OF THE SLAVES (1862-1863) 
 
 SUGGESTIONS 
 
 In Barrett's biography of Abraham Lincoln, it is stated that the first 
 rough draft of the Emancipation Proclamation was written on board 
 ship as the President was returning from his visit to the army at 
 Harrison's Landing, the 8th of July. The original oiiicial draft is 
 dated September 22nd, 1862, and was presented to the Army Relief 
 Bazaar at Albany, N. Y., in 18G4. It is in the handwriting of Presi- 
 dent Lincoln, excepting two interlineations in pencil, by Secretary 
 Seward, and the formal heading and ending, which were written by 
 the chief clerk of the State Department. The final Proclamation was 
 signed on New Year's Day, 1863. 
 
 These documents demand close study : the preliminary proclama- 
 tion has a background of military as well as political history, which 
 is of the greatest importance ; and in the study of the final document 
 the student should take into consideration the story of Lincoln's 
 life; the anecdotes and incidents grouping themselves ai'ound the 
 abolitionists of the North ; the home life upon the Southern planta- 
 tion ; the long struggle between the two great parties in Congress, — 
 problems which preceded the Proclamation of 1863. 
 
 For Outlines and Material, see Appendix B. 
 
 DOCUMENTS 
 Preliminary Proclamation of Emancipation 
 
 September 22, 1862. 
 
 Text taken Ii Abraham Lincoln, President of the United 
 
 from Abra- States of America, and commauder-in-chief of the 
 hamLmcoln, , ,, j? i i u i • j j 
 
 Complete army and navy thereof, do hereby proclaim and de- 
 
 Works, ii.2Z1. clare that hereafter, as heretofore, the war will be 
 
 N"ote that prosecuted for the object of practically restoring- the 
 
 Lincoln was constitutional relation between the United States, 
 the head of ' 
 
 the Army and each of the States, and the people thereof, in 
 
1862] TEXT 359 
 
 whicli States that relation is or may be suspended or according to 
 
 disturbed. S-t ^«- 
 
 That it is my purpose, upon the next meeting of r^j^j^ r)rocla- 
 
 Congress, to again recommend the adoption of a mation was 
 
 practical measure tendering pecuniary aid to the kept back 
 
 free acceptance or rejection of all slave States so the victory 
 
 called, the people whereof may not then be in rebel- ^^ Antietam. 
 
 President 
 lion against the United States, and which States Lincoln had 
 
 may then have voluntarily adopted, or thereafter vowed to 
 
 may voluntarily adopt, immediate or gradual abol- f^igi the^ 
 
 ishment of slavery within their respective limits ; promise to 
 
 and that the effort to colonize persons of Af ri- ^^^'^^ ^^^^1\ ^ 
 . ' Ijroclamation 
 
 can descent, with then' consent, upon tins conti- if the " rebel 
 
 nent or elsewhere, with the previously obtained army " were 
 consent of the governments existing there, will in December 
 be continued. the House 
 
 That on the first day of January, in the year of oiutSnYo^^" 
 our Lord one thousand eight hundred and sixty- approve the 
 
 three, all persons held as slaves within any State, or Pi'esideut's 
 
 "^ policy, 
 
 designated part of a State, the people whereof shall 
 
 then be in rebellion against the United States, shall 
 be then, thenceforward, and forever free ; and the 
 Executive Government of the United States, includ- 
 ing the military and naval authority thereof, will 
 recognize and maintain the freedom of such per- 
 sons, and will do no act or acts to repress such 
 persons, or any of them, in any efforts they may 
 make for their actual freedom. 
 
 That the Executive will, on the first day of January See Final 
 aforesaid, by proclamation, designate the States Proclama- 
 and parts of States, if any, in which the people 
 thereof respectively shall then be in rebellion against ISTo such con- 
 the United States ; and the fact that any State, or brou-hl^^ 
 the people thereof, shall on that day be in good faith about be- 
 represented in the Congress of the United States, by ^^^^iggf^^anJi 
 members chosen thereto at elections wherein a ma- Jan. 1, 1863. 
 jority of the qualified voters of such State shall have 
 participated, shall, in the absence of strong counter- 
 vailing testimony, be deemed conclusive evidence 
 
360 PROCLAMATION OF EMANCIPATION [Ch. XXII 
 
 Kefusal of 
 government 
 to uphold 
 Fugitive 
 Slave Law. 
 
 " Contra- 
 bands" be- 
 come free 
 men. 
 
 that such State, and the people thereof, are not then 
 in rebellion against the United States. 
 
 That attention is hereby called to an act of Con- 
 gress entitled " An act to make an additional article 
 of war," approved March 13th, 1862, and which act 
 is in the words and figures following : 
 
 " Be it enacted hy the Senate and House of Repre- 
 sentatives of the United States of Ame^'ica in Con- 
 gress assembled^ That hereafter the following shall 
 be promulgated as an additional article of war for 
 the government of the army of the United States, 
 and shall be obeyed and observed as such : 
 
 ' ' Article — . All officers or persons in the mili- 
 tary or naval service of the United States are pro- 
 hibited from employing any of the forces under their 
 respective commands for the purpose of returning 
 fugitives from service or labour who may have es- 
 caped from any persons to whom such service or 
 labour is claimed to be due ; and any officer who 
 shall be found guilty by a court-martial of violating 
 this article shall be dismissed from the service." 
 
 "Section 2. And he it further enacted, That this 
 act shall take effect from and after its passage." 
 
 Also, to the ninth and tenth sections of an act 
 entitled "An act to suppress insurrection, to punish 
 treason and rebellion, to seize and confiscate prop- 
 erty of rebels, and for other purposes," approved 
 July 17, 1862, and which sections are in the words 
 and figures following : 
 
 " Sec. 9. And he it further enacted, That all 
 slaves of persons who shall hereafter be engaged in 
 rebellion against the government of the United 
 States, or who shall in any way give aid or com- 
 fort thereto, escaping from such persons and taking 
 refuge within the lines of the army ; and all slaves 
 captured from such persons, or deserted by them, 
 and coming under the control of the government of 
 the United States; and all slaves of such persons 
 found on [or] being within any place occupied by 
 
1862J TEXT 361 
 
 rebel forces and afterwards occupied by forces of the 
 United States, shall be deemed captives of war, and 
 shall be forever free of their servitude, and not again 
 held as slaves. 
 
 " Sec. 10. And he it farther eyiacted. That no 
 slave escaping into any State, Territory, or the Dis- 
 trict of Columbia, from any other State, shall be Practically- 
 delivered up, or in any way impeded or hindered of *^^^, ^f\f ^'^' 
 his liberty, except for crime or some offense against Fugitive 
 the laws, unless the person claiming said fugitive Slave Act of 
 shall first make oath that the person to whom the 
 labour or service of such fugitive is alleged to be due 
 is his lawful owner, and has not borne arms against 
 the United States in the present rebellion, nor in 
 any way given aid and comfort thereto ; and no per- 
 son engaged in the military or naval service of the 
 United States shall, under any pretence whatever, 
 assume to decide on the validity of the claim of any 
 person to the service or labour of any other person, 
 or surrender up any such person to the claimant, on 
 pain of being dismissed from the service." 
 
 And I do hereby enjoin upon and order all per- 
 sons engaged in the military and naval service of 
 the United States to observe, obey, and enforce, 
 within their respective spheres of service, the act 
 and sections above recited. 
 
 And the Executive will in due time recommend 
 
 that all citizens of the United States who shall have Compen- 
 
 remained loyal thereto throughout the rebellion shall sated eman- 
 / , T 1 . cipatiou 
 
 (upon the restoration of the constitutional relation proved inef- 
 
 between the United States and their respective fectual. 
 
 States and people, if that relation shall have been 'T^i? ^^?,*^^^' 
 
 suspended or disturbed) be compensated for all been talked 
 
 losses by acts of the United States, including the of for months 
 
 lo^s of slaves. Se p«t"^' 
 
 In witness whereof, I have hereunto set my hand, and politi- 
 
 and caused the seal of the United States to be *^^^?®- 31^^^^ 
 ™ , not until the 
 
 affixed. President 
 
362 PROCLAMATION OF EMANCIPATION [Ch. XXII 
 
 deemed it Done at the city of Washington, this twenty-second 
 iTwaTeveii ^^^ ^^ September, in the year of our Lord 
 
 drafted (July [l, s.] one thousand eight hundred and sixty-two, 
 then lafd^^^ ^^^ ^^ *^® Independence of the United States 
 
 aside for tlie the eighty-seventh. Abraham Lincoln. 
 
 ripening of By the President : 
 
 Wm. H. Sewaed, Secretary of State. 
 
 Final Proclamation of Emancipation. 
 
 January 1, 1863. 
 
 Text from Whereas, on the twenty-second day of September, 
 
 Abrahani jj^ ^j^g year of our Lord one thousand eight hundred 
 plete Works, and sixty-two, a proclamation was issued by the 
 11.287. President of the United States, containing, among 
 
 other things, the following, to wit : 
 
 See preced- 
 ing docu- 
 ment. 
 
 " That on the first day of January, in the year of 
 our Lord one thousand eight hundred and sixty- 
 three, all persons held as slaves within any state or 
 designated part of a state, the people whereof shall 
 then be in rebellion against the United States, shall 
 be then, thenceforward, and forever free; and the 
 Executive Government of the United States, includ- 
 ing the military and naval authority thereof, will 
 recognize and maintain the freedom of such per- 
 sons, and will do no act or acts to repress such 
 persons or any of them, in any efforts they may 
 make for their actual freedom. 
 
 " That the Executive will, on the first day of 
 January aforesaid, by proclamation, designate the 
 states and parts of states, if any, in which the 
 people thereof respectively shall then be in rebel- 
 lion against the United States ; and the fact that 
 any state, or the people thereof, shall on that day 
 be in good faith represented in the Congress of the 
 United States, by members chosen thereto at elec- 
 tions wherein a majority of the qualified voters of 
 such state shall have participated, shall, in the ab- 
 
1862-1863] TEXT 363 
 
 sence of strong countervailing testimony, be deemed 
 
 conclusive evidence that such state, and the people 
 
 thereof, are not then in rebellion against the United 
 
 States." 
 
 Now, therefore, I, Abraham Lincoln, President By virtue of 
 
 of the United States, by virtue of the power in me coLmrnder- 
 
 vested as commander-in-chief of the army and navy in-chief "in 
 
 of the United States in time of actual armed rebel- *™f ^* ^^~ 
 
 tual armed 
 lion against the authority and government of the rebellion." 
 
 United States, and as a fit and necessary war meas- 
 ure for suppressing said rebellion, do, on this first 
 day of January, in the year of our Lord one thou- 
 sand eight hundred and sixty-three, and in accord- 
 ance with my purpose so to do, publicly proclaimed 
 for the full period of 100 days from the day first 
 above mentioned, order and designate, as the states 
 and parts of states wherein the people thereof respec- 
 tively are this day in rebellion against the United 
 States, the following, to wit : 
 
 Arkansas, Texas, Louisiana (except the parishes Tennessee 
 of St. Bernard, Plaquemine, Jefferson, St. John, St. q? Lo^fiJana 
 Charles, St. James, Ascension, Assumption, Terre and Virginia 
 Bonne, Lafourche, St. Marie, St. Martin, and Or- occupied by 
 leans, including the city of New Orleans), Missis- ^ere not in- 
 sippi, Alabama, Florida, Georgia, South Carolina, eluded. 
 North Carolina, and Virginia (except the forty- 
 eight counties designated as West Virginia, and 
 also the counties of Berkely, Accomac, Northamp- 
 ton, Elizabeth City, York, Princess Ann, and Nor- 
 folk, including the cities of Norfolk and Ports- 
 mouth), and which excepted parts are for the pres- 
 ent left precisely as if this proclamation were not 
 issued. 
 
 And, by virtue of the power and for the purpose Death blow 
 aforesaid, I do order and declare that all persons *^ slavery. 
 held as slaves within said designated states and 
 parts of states are and henceforth shall be free ; 
 and that the Executive Government of the United 
 States, including the military and naval authorities 
 
364 PROCLAMATION OF EMANCIPATION [Ch. XXII 
 
 thereof, will recognize and maintain the freedom of 
 said persons. 
 
 And I hereby enjoin upon the people so declared Encourage- 
 to be free, to abstain from all violence, unless in ment. 
 necessary self-defence ; and I recommend to them 
 that in all cases, when allowed, they labour faithfully 
 for reasonable wages. 
 
 And I further declare and make known that such Acknowledg- 
 persons of suitable condition will be received into coloured 
 the armed service of the United States, to garrison troops, 
 forts, positions, stations, and other places, and to 
 man vessels of all sorts in said service. 
 
 And upon this act, sincerely believed to be an 
 
 act of justice, warranted by the Constitution, upon . ,, , . 
 
 military necessity, I invoke the considerate judg- the South 
 
 raent of mankind and the gracious favour of Al- refused to 
 
 . t ^ r^ 1 accept the 
 
 mighty God. negroes as 
 
 In testimony whereof, I have hereunto set my " prisoners 
 name, and caused the seal of the United States to consequence 
 be affixed. the President 
 
 issued, July 
 
 Done at the city of Washington, this first day of ^j^ order'that 
 January, in the year of our Lord one thou- for every 
 
 r- -] sand eight hundred and sixty-three, and of ^-er^k"!! d 
 
 the Independence of the United States the in violation 
 
 eighty-seventh. ^l the laws 
 
 ^ "^ . -r of war a rebel 
 
 Abraham Lincoln, soldier 
 
 By the President : should be 
 
 William H. Seward, Secretary of State. execute . 
 
 CONTEMPORARY EXPOSITION 
 
 CRAVENS (1862) 
 
 Let us look for a moment at some of the results of the gen- 
 eral and immediate emancipation of four million slaves. . . . 
 I know that the instincts of the people are against receiving 
 them into their midst. We feel that we are not responsible 
 for their maintenance as they now are. We fear, notwith- 
 standing any statutory provision we may enact, that these 
 
1862] CONTEMPORARY EXPOSITION 365 
 
 millions of enfranchised slaves will come in crowds into every 
 community ; come into competition with our white labour, and 
 burden us with their support. It is not an imaginary fear, as 
 the President would have us believe, but a stern reality. The 
 few contrabands now under the care of the Government have 
 entailed upon it immense expense. This emancipation measure 
 seems to contemplate the bursting up of the old relations of 
 society, that have long existed in the Southern States. . . . 
 What sagacity can foresee the results of universal emancipa- 
 tion? My judgment is that the people will never consent to it. 
 
 J. A. Cravens, Speech in House of Representatives. Congressional Globe, 
 37th Cong., 3d Sess. Appendix, 43. December 18, 1862. 
 
 THOMAS (1862) 
 
 I have always been taught that the people is the sovereign : 
 that these constitutions are carefully defined grants from the 
 sovereign powers, so framed as to establish justice, and at the 
 same time secure blessings of liberty and the protection of 
 law even to the humblest and meanest citizen. I know, Mr. 
 Speaker, that these are old-fashioned sentiments. Magna 
 Charta is soiled and worm-eaten. The Bill of Eights, the mu- 
 niments of personal freedom, habeas corpus^ trial by jury, what 
 are they all worth in comparison with this new safeguard of 
 liberty, the proceeding in rem ? 
 
 Were you ever in Runnymede, Mr. Speaker ? I remember 
 going down, on a beautiful day in July, from Windsor Castle 
 to the plain, and crossing the narrow channel of the Thames 
 to that little island in which more than six centuries ago, in 
 the early gray morning, those sturdy barons wrested from an 
 unwilling king the first great charter of English freedom — 
 the germ of life of the civil liberty we have to-day. I could 
 hardly have been more moved had I stood in the village and 
 by the manger in which was cradled the Son of Mary and the 
 Son of God. From the gray of that morning streamed the 
 rays, which uplifting with the hours, coursing with the years, 
 and keeping pace with the centuries have encircled the whole 
 earth with the glorious light of English liberty. The liberty 
 for which our fathers planted these commonwealths in the wil- 
 derness, for which they went through the baptism of fire and 
 
366 PROCLAMATION OF EMANCIPATION [Ch. XXII 
 
 blood in the Eevolution: which they imbedded and hoped 
 to make immortal in the Constitution ; without which the Con- 
 stitution would not be worth the parchment on which it is 
 written. 
 
 Benjamin F. Thomas, in House of Eepresentatives, Congressional Globe. 
 37th Cong., 2d Sess. Appendix, 220. May 24, 1862. 
 
 GRANT (1S63) 
 
 Milliken's Bend, Louisiana. 
 . . . Corps, division, and post commanders will afford all 
 facilities for the completion of the negro regiments now organ- 
 izing in this department. Commissioners will issue supplies, 
 and quartermasters will furnish stores, on the same requis-i- 
 tions and returns as are required for other troops. It is ex- 
 pected that all commanders wiU especially exert themselves in 
 carrying out the policy of the Administration, not only in 
 organizing coloured regiments and rendering them efficient, but 
 also in removing prejudices against them. 
 
 U. S. Grant, General Order, in Jeremiah Chaplin, Words of our Hero, 
 Ulysses S. Grant. 9. 
 
 CARPENTER (1866) 
 
 Mr. Chase told me that at the Cabinet meeting, immediately 
 after the battle of Antietam, and just prior to the issue of the 
 September Proclamation, the President entered upon the busi- 
 ness before them, by sayiug that " the time for the annuncia- 
 tion of the emancipation policy could be no longer delayed. 
 Public sentiment," he thought, "would sustain it — many of 
 his warmest friends and supporters demanded it — and he had 
 promised his God that he tooidd do it ! " The last part of this 
 was uttered in a low tone, and appeared to be heard by no one 
 but Secretary Chase, who was sitting near him. He asked the 
 President if he correctly understood him. Mr. Lincoln replied : 
 ' ' I made a solemn vow before God, that if General Lee was 
 driven hack from Pennsylvania, I would crown the result by a 
 declaration oj^ freedom to the slaves." . . . 
 
 In February, 1865, a few days after the passage of the 
 " Constitutional Amendment," I went to Washington, and was 
 received by Mr. Lincoln with the kindness and familiarity 
 
1862-1889] CRITICAL COMMENT 367 
 
 which had characterized our previous intercourse. I said to 
 him at this time that I was very proud to have been the artist 
 to have first conceived of the design of painting a picture com- 
 memorative of the Act of Emancipation ; that subsequent 
 occurrences had only confirmed my own first judgment of that 
 act as the most sublime moral event in our history. "Yes," 
 said he, — and never do I remember to have noticed in him 
 more earnestness of expression or manner, — "as affairs have 
 turned, it is the central act of my administration, and the large 
 event of the nineteenth century." 
 
 F. B. Cakpentek, Six Months at the White House, 89-90. 
 
 CRITICAL COMMENT 
 JOHNSTON (18S9) 
 
 At the beginning of the war the people and leaders of the 
 North had not desired to interfere with slavery, but circum- 
 stances had been too strong for them. Lincoln had declared 
 that he meant to save the Union as he best could, — by pre- 
 serving slavery, by destroying it, or by destroying part and 
 preserving part of it. Just after the battle of Antietam he 
 issued his proclamation calling on the revolted States to return 
 to their allegiance before the following January 1, otherwise 
 their slaves would be declared free men. No State returned, 
 and the threatened declaration was issued January 1, 1863. 
 As President, Lincoln could issue no such declaration; as 
 commander-in-chief of the armies and navies of the United 
 States, he could issue directions only as to the territory within 
 his lines ; but the Emancipation Proclamation applied only to 
 territory outside of his lines. 
 
 It has therefore been debated whether the proclamation was 
 in reality of any force. It may f aidy be taken as an announce- 
 ment of the policy which was to guide the army, and as a 
 declaration of freedom taking effect as the lines advanced. 
 At all events, this was its exact effect. Its international im- 
 portance was far greater. The locking up of the world's 
 source of cotton-supply had been a general calamity, and the 
 Confederate Government and people had steadily expected 
 
368 PROCLAMATION OF EMANCIPATION [Ch. XXII 
 
 that the English and French Governments, or at least one of 
 them, would intervene in the war for the purpose of raising 
 the blockade and releasing the southern cotton. The conver- 
 sion of the struggle into a crusade against slavery made inter- 
 vention impossible for Governments whose peoples had now a 
 controlling influence on their policy, and intelligence enough to 
 understand the issue which had now been made. 
 
 Alexander Johnston, The United States, Its History and Constitution, 
 230, 231. 
 
 NICOLAT AND HAT (1890) 
 
 Vast as were its consequences, the act itself was only the 
 simplest and briefest formality. It could in no wise be made 
 sensational or dramatic. . . . Those who were in the house 
 came to the executive office merely from the personal impulse 
 of curiosity joined to momentary convenience. His signature 
 was attached to one of the greatest and most beneficent mili- 
 tary decrees of history in the presence of less than a dozen 
 persons ; after which it was carried to the Department of State 
 to be attested by the gi'eat seal and deposited among the ar- 
 chives of the Government. . , . Like all his reasoning, it is 
 simple and strong, resting its authority on the war powers of 
 the Government and its justification upon military necessity. 
 As to the minor subtleties of interpretation or comment which 
 it might provoke from lawyers or judges after the war should 
 be ended, we may infer that he had his opinions, but that they 
 did not enter into his motives of action. On subsequent occa- 
 sions, while continuing to declare his belief that the proclama- 
 tion was valid in law, he nevertheless frankly admitted that 
 what the courts might ultimately decide was beyond his knowl- 
 edge as well as beyond his control. . , . 
 
 For the moment he was dealing with two mighty forces of 
 national destiny, civil war and public opinion ; forces which 
 paid little heed to theories of public, constitutional, or inter- 
 national law where they contravened their will and power. In 
 fact it was the impotence of legislative machinery, and the in- 
 sufficiency of legal dicta to govern or terminate the conflicts 
 of public opinion on this identical question of slavery, which 
 brought on civil strife. In the South slavery had taken up 
 
1889-1897] CRITICAL COMMENT 369 
 
 arms to assert its nationality and perpetuity; in the North 
 freedom had risen first in mere defensive resistance ; then the 
 varying fortunes of war had rendered the combat implacable 
 and mortal. It was not from the mouldering volumes of an- 
 cient precedents, but from the issues of the present wager of 
 battle, that future judges of courts would draw their doctrines 
 to intei'pret to posterity whether the Edict of Freedom was void 
 or valid. 
 
 NicOLAY AND Hat, Abraham. Lincoln : A History. VI. 429-430, 435-436. 
 
 PIERCE (1893) 
 
 This proclamation, followed by the later one of January 1, 
 1863, yields in importance to no event in American or even in 
 modern history. It had not, indeed, the sanction of the States 
 as a constitutional provision, or of Congress as a statute, or of 
 a high tribunal as a rule of law. It could not perhaps have 
 been pleaded in any court as securing the liberty of a single 
 slave. But in its significance and effect it stands before any 
 edict, secular or ecclesiastical, since Constantine proclaimed 
 Christianity as the religion of the Roman world. It was the 
 voice of a great nation, uttered in solemn form at the supreme 
 moment of its history, pledging itself to the cause of universal 
 freedom. 
 
 Edwaed L. Pierce, Memoir and Letters of Charles Sumner. IV. 66. 
 
 DUNNING (1897) 
 
 It has sometimes been said that January 1, 1863, marks the 
 most distinct epoch in the history of the war. The Emancipa- 
 tion Proclamation is assumed as the dividing line between the 
 old system and the new. This view is more appropriate to the 
 state of affairs in the South than to that in the North. It is 
 unquestionably true that Mr. Lincoln's decree furnished the 
 Southern leaders with a most effective instrument for the con- 
 solidation of sentiment in the Confederacy. From that time 
 the struggle on the part of the South was a desperate battle 
 for existence. But in the North, on the other hand, the tri- 
 umph of the radicals in securing the adoption of their policy 
 by the President awakened feelings of apprehension among the 
 other political factions. Mr. Lincoln admits, in his message to 
 
 24 
 
370 PROCLAMATION OF EMANCIPATION [Ch. XXII 
 
 Congress in December, that the issue of the proclamation " was 
 followed by dai'k and doubtful days." 
 
 William A. Dunning, Essays on the Civil War and Reconstruction. 60, 61. 
 
 MORSE (1S97) 
 
 The first day of January, 1863, arrived, and no event had 
 occurred to delay the issue of the promised proclamation. It 
 came accordingly. By virtue of his power, as commander-in- 
 chief, . . . the President ordered that all persons held as slaves 
 in certain States and parts of States, which he designated as 
 being then in rebellion, should be thenceforward free, and de- 
 clared that the Executive, with the army and navy, would 
 " recognize and maintain the freedom of said persons." . . . 
 
 The people at large received this important step with some 
 variety of feeling and expression ; but, upon the whole, ap- 
 proval seems to have far outrun the dubious prognostications 
 of the timid and conservative class. For the three months, 
 which had given opportunity for thinking, had produced the 
 result which Mr. Lincoln had hoped for. It turned out that the 
 mill of God had been grinding as exactly as always. Very 
 many, who would not have advised the measure, now heartily 
 ratified it. Later, after men's minds had had time to settle 
 and the balance could be fairly struck, it appeared undeniable 
 that the final proclamation had been of good effect; so Mr. 
 Lincoln himself said. 
 
 John T. Morse, Jr., Abraham Lincoln. II. 130-132. 
 
 McCALL (1S90) 
 
 Lincoln determined that the bravest course was the safest 
 course, and he put emancipation as a war measure squarely 
 before the people only a few weeks before the Congressional 
 elections of 1862. He declared that all slaves in those rebel 
 States which should not have submitted before January 1, 1863, 
 " shall be then, thenceforward, and forever free." It was in 
 the power of the Confederates to avoid the proclamation by 
 laying down their arms. They were not compelled to continue 
 the war. On the other hand if they were to keep on fighting 
 indefinitely they could not expect the North to cherish their 
 
1897-1900] CRITICAL COMMENT 371 
 
 institution any longer. It was well that Lincoln displayed all 
 his consummate skill as a politician in framing the issue as he 
 did frame it, for the election was of transcendent importance, 
 A hostile Congress meant, not merely delay and probably de- 
 struction to the emancipation policy, but it meant also reduced 
 appropriations for the war and great encouragement to the 
 Confederates. The Democrats accepted the issue ; indeed they 
 were anxious to raise it. 
 
 Samuel W. McCall, Thaddeus Stevens. 218-219. 
 
 FREDERIC BANCROFT (1900) 
 
 Before the proclamation of emancipation was issued, Jan- 
 uary 1, 1863, emancipation societies were forming in England; 
 and by the time it had crossed the Atlantic all intelligent Eng- 
 lishmen were beginning to gain correct knowledge as to the 
 cause of the war. January had not passed before the first 
 waves of the anti-slavery storm in America were felt. In a 
 few weeks more, English public opinion showed a surprising 
 awakening. Great public meetings were held in the large cities, 
 and famous speakers addressed audiences infused with the 
 ardour and courage peculiar to national reform movements. The 
 mass of labourers in mines and factories rapidly developed a 
 bitter prejudice against the Confederacy. Impressive anti- 
 slavery resolutions were passed unanimously, and addresses of 
 congratulation were sent to the President of the United States. 
 As Cobden wrote to Sumner, these remarkable demonstrations 
 of sympathy for the cause of freedom "closed the mouths of 
 those who have been advocating the side of the South." The 
 friends of the North felt thenceforth that they had a cause to 
 plead. 
 
 Frederic Bancroft, Life of William H. Seward^ II. 340-341. 
 
 TARBELL (1900) 
 
 When Congress opened on December 1, he did submit the 
 proclamation, together with the plan for compensated emanci- 
 pation which he had worked out. Over one-half of the mes- 
 sage, in fact, was given to this plan. 
 
 Mr. Lincoln pleaded with Congress for his measure as he 
 
 1 Copyright, 1899 and 1900, by Harper & Brothers. 
 
872 PROCLAMATION OF EMANCIPATION [Ch. XXII 
 
 had never pleaded before. He argued that it would " end the 
 struggle and save the Union forever," that it would " cost 
 no blood at all," that Congress could do it if they would unite 
 with the executive, that the "good people" would respond 
 and support it if appealed to. 
 
 " It is not," he said, " 'Can any of us imagine better? ' but, 
 ' Can we all do better?' Object whatsoever is possible, still 
 the question occurs, ' Can we do better?' The dogmas of 
 the quiet past are inadequate to the stormy present. The occa- 
 sion is piled high with difficult}', and we must rise with the 
 occasion. As our case is new, so we must think anew and act 
 anew. We must disenthrall ourselves, and then we shall save 
 our country. 
 
 " Fellow citizens, we cannot escape history. We of this 
 Congress and this Administration will be remembered in spite 
 of ourselves. No personal significance or insignificance can 
 spare one or another of us. The fiery trial through which we 
 pass will light us down, in honour or dishonour, to the latest 
 generation. We say we are for the Union. The world will 
 not forget that we say this. We know how to save the Union. 
 The world knows we do know how to save it. We — even 
 we here — hold the power and bear the responsibility. In giv- 
 ing freedom to the slave, we assure freedom to the free — hon- 
 ourable alike in what we give and what we preserve. We shall 
 nobly save or meanly lose the last, best hope of earth. Other 
 means may succeed ; this could not fail. The way is plain, 
 peaceful, generous, just — ■ a way which, if followed, the world 
 will forever applaud, and God must forever bless." 
 
 Ida M. Tarbell, Life of Abraham Lincoln. II. 122-123. 
 
1865-1868] DOCUMENTS 373 
 
 Chapter XXIII 
 THE RECONSTRUCTION AMENDMENTS (1865-1870) 
 
 SUGGESTIONS 
 
 The Thirteenth Amendment was proposed by Congress Feb. 1, 1865, 
 and declared to have been ratified by twenty-seven of the thirty-six 
 States, Dec. 18, 1865. 
 
 The Fourteenth Amendment was proposed by Congress June 16, 
 1866, and declared to have been ratified by thirty of the thirty-six 
 States, July 28, 1868. 
 
 The Fifteenth Amendment was proposed by Congress Feb. 26, 1869, 
 and declared to have been ratified by twenty-nine of the thirty-seven 
 States, March 30, 1870. 
 
 With the examination of the three amendments, we reach the 
 farthest extension of free institutions by the Teutonic race. Begin- 
 ning with the liberty of the baron, set forth in Magna Charta in 
 1215, the doctrine that all inen are born equal in so far as rights and 
 privileges in government are concerned was in these documents finally 
 demonstrated and made good by law. 
 
 For Outlines and Material, see Appendix B. 
 
 DOCUMENTS 
 
 Thirteenth Amendment (1865) 
 
 Section 1. Neither slavery nor involuntary servi- American His- 
 
 tude, except as a punishment for crime whereof the ^'"•^ Leaflets, 
 
 party shall have been duly convicted, shall exist from original 
 
 within the United States, or any place subiect to manuscript 
 ,....,.,. ' ^ ^ ^ Eolls). Slav- 
 
 their jurisdiction. ery forbidden 
 
 Section 2. Congress shall have power to enforce by law in 
 this article by appropriate legislation. under ^^^S 
 
 jurisdiction. 
 Fourteenth Amendment (1868) 
 
 Section 1. All persons born or naturalized in citizenship 
 the United States, and subject to the jurisdiction defined by 
 
374 
 
 RECONSTRUCTION AMENDMENTS [Ch. XXlII 
 
 law. Note 
 " Opinion of 
 the Court," 
 Dred Scott 
 Case. This 
 section was 
 modified by 
 tlie adoption 
 of the 15th 
 Amendment, 
 whicli abso- 
 lutely took 
 away from 
 the State the 
 power to ex- 
 clude the 
 negro from 
 suffrage. 
 
 thereof, are citizens of the United States and of 
 the State wherein they reside. No State shall make 
 or enforce any law which shall abridge the privi- 
 leges or immunities of citizens of the United States ; 
 nor shall any State deprive any person of life, lib- 
 erty, or property, without due process of law ; nor 
 deny to any person within its jurisdiction the equal 
 protection of the laws. 
 
 Section 2. Representatives shall be apportioned 
 among the several States according to their respec- 
 tive numbers, counting the whole number of persons 
 in each State, excluding Indians not taxed. But 
 when the right to vote at any election for the choice 
 of electors for President and Vice President of the 
 United States, Representatives in Congress, the Ex- 
 ecutive and Judicial officers of a State, or the mem- 
 bers of the Legislature thereof, is denied to any of 
 the male inhabitants of such State, being twenty- 
 one years of age, and citizens of the United States, 
 or in any way abridged, except for participation in 
 rebellion, or other crime, the basis of representation 
 therein shall be reduced in the proportion which the 
 number of such male citizens shall bear to the whole 
 number of male citizens twenty-one years of age in 
 such State. 
 
 Section 3. No person shall be a Senator or Rep- 
 resentative in Congress, or elector of President and 
 Vice President, or hold any office, civil or military, 
 under the United States, or under any State, who, 
 having previously taken an oath, as a member of 
 Congress, or as an officer of the United States, or 
 as a member of any State legislature, or as an ex- 
 ecutive or judicial officer of any State, to support 
 the Constitution of the United States, shall have en- 
 gaged in insurrection or rebellion against the same, 
 or given aid and comfort to the enemies thereof. 
 But Congress may by a vote of two-thirds of each 
 House, remove such disability. 
 
 Section 4. The validity of the public debt of the 
 
1868-1870] CONTEMPORARY EXPOSITION 375 
 
 United States, authorized by law, including debts Federal Debt 
 incurred for payment of pensions and bounties for ^^o^^^erate 
 services in suppressing insurrection or rebellion, repudiated, 
 shall not be questioned. But neither the United 
 States nor any State shall assume or pay any debt 
 or obligation incurred in aid of insurrection or re- 
 bellion against the United States, or any claim for 
 the loss or emancipation of any slave ; but all such 
 debts, obligations and claims shall be held illegal 
 and void. 
 
 Section 5. The Congress shall have power to 
 enforce, by appropriate legislation, the provisions 
 of this article. 
 
 By this 
 Fifteenth Amendment (1870) amendment 
 
 Section 1. The right of citizens of the United jj^^^^jg ?'^jpj^j._ 
 
 States to vote shall not be denied or abridged by tial, but not 
 
 the United States or by any State on account of JJ^iversaf ^to 
 
 race, colour, or previous condition of servitude. — male citizens 
 
 Section 2. The Congress shall have power to above the age 
 .11 . . 1 • 1 \- of twenty- 
 
 enforce this article by appropriate legislation. — one years. 
 
 CONTEMPORARY EXPOSITION 
 
 COFFROTH (1865) 
 
 Mr. Speaker, I speak not to-day for or against slavery. I 
 am contented that this much agitated question shall be adjudi- 
 cated at the proper time by the people. It is my purpose to 
 state in all candour the reasons which prompt me to give the vote 
 I shall now soon record. The amending of our Constitution is 
 fraught with so much importance to the American people that 
 before it is accomplished the amendments proposed should be 
 scrutinized with the strictest criticism. . . . The life and exist- 
 ence of this nation is centered in the observance and faithful 
 execution of the powers conferred by the Constitution upon the 
 servants of the people. . . . 
 
 It is argued that this amendment is unconstitutional ; that the 
 Congress of the United States has no legal authority to propose 
 this amendment, nor have the states in ratifying it the consti- 
 
376 RECONSTRUCTION AMENDMENTS [Ch. XXIII 
 
 tutional power to destroy or interfere with the right of property. 
 Learned gentlemen of this House differ on this subject. The 
 Constitution itself provides the remedy by which all these dif- 
 ferences of opinion can be legally adjudicated. (See Sec. 2 of 
 Art. 3 of the Constitution. ) . . . I have voted for every peace 
 resolution in this House. My heart yearns for peace . . . and 
 if by my vote this amendment is submitted to the States, and it 
 brings this war to a close, I will ever rejoice at the vote I have 
 given. 
 A. H. CoPFKOTH, Con(7?-essiona/ C/oie, 38 Cong. 2(1 Sess. 523. Jan. 31,1865. 
 
 BROWN (18C5) 
 
 It is mischievous in so far as it would tie the hands of the 
 President, in so regulating the mode of abolishing slavery as 
 not to precipitate upon the country three million ignorant and 
 debased negroes, without the slightest preparation for liberty or 
 power on the part of the Government, by a system of appren- 
 ticeship or otherwise to require them to labour. . . . 
 
 England, in emancipating the slaves on her islands, not only 
 established a system of apprenticeship, but compensated those 
 who lost. It is no answer that slavery is immoral : individuals, 
 upon the faith of laws which recognized rights in negro labour, 
 have invested their property in such rights. When the Govern- 
 ment sees fit to change its policy and destroy its rights, it owes 
 compensation. Of course compensation is due only to loyal 
 owners. 
 
 It is a dangerous abuse of the power of amendment conferred 
 by the Constitution. 
 
 J. S. Beown, in House of Representatives, Congressional Globe, 38 Cong. 
 2d Sess. 527. Jan. 31, 1865. 
 
 BLAINE (188G) 
 
 The proposed Constitutional amendment was brought before 
 the House on the 6th of January by Mr. Ashley of Ohio, upon 
 whose motion to reconsider the adverse vote of the preceding 
 session, the question continued to have a parliamentary status. 
 He made a forcible speech in support of the amendment, but 
 the chief value of his work did not consist in speaking, but in 
 his watchful care of the measure, in the quick and intuitive 
 judgment with which he discerned every man on the Demo- 
 
1868-1886] CONTEMPORARY EXPOSITION 377 
 
 cratic side of the House who felt anxious as to the vote he 
 should give on the momentous question, and in the pressure 
 which lie brought to bear upon him from the best and most in- 
 fluential of his constituents. The issue presented was one that 
 might well make thoughtful men pause and Consider. The 
 instant restoration to four millions of human beings of the 
 God-given right of freedom so long denied them, depended 
 upon the vote of the House of Representatives. It addressed 
 itself to the enlightened judgment and to the Christian phi- 
 lanthropy of every member. Each one had to decide for 
 himself whether so far as lay in the power of his own vote he 
 would give liberty to the slave, or forge his fetters anew. The 
 constitutional duty of not interfering with slaver3' in the States 
 could not be pleaded at the bar of conscience for an adverse 
 vote. There was no doubt that under the terms of the Con- 
 stitution such interference was unwarranted. But this was a 
 question of changing the Constitution itself so as to confer 
 upon Congress the express power to enlarge the field of per- 
 sonal liberty and make the Republic free indeed. It came 
 therefore as an original and distinct question whether millions 
 of people with their descendants for aU time should be doomed 
 to slavery or gifted with freedom. . . . 
 
 The vote was 119 yeas to 56 nays — more than the constitu- 
 tional two-thirds. When the announcement was made, the 
 Speaker became powerless to preserve order. The members 
 upon the Republican side sprang upon their seats cheering, 
 shouting, and waving hands, hats, and canes, while the specta- 
 tors upon the floor and in the galleries joined heartily in the 
 demonstrations. . . . 
 
 The great act of Liberation, so far as Congress could control 
 it, was complete. The amendment was at once submitted to 
 the States, and by official proclamation of December 18, 1865, 
 — less than eleven months after Congress had spoken, — the 
 Secretary of State announced that it had been ratified by the 
 Legislatures of twenty-seven States and was a part of the Con- 
 stitution. The result was attained by the united action of one 
 party and the aid of a minority of the other party. The co- 
 operation of the Democratic members had gained for the cause 
 of emancipation a whole year. The action was of transcend- 
 
378 RECONSTRUCTION AMENDMENTS [Ch. XXIII 
 
 ent importance — lofty in conception, masterful in execution. 
 Slavery in the United States was dead. To succeeding and not 
 distant generations its existence in a Republic, for three-quar- 
 tex's of a century, will be an increasing marvel. . . . 
 
 The success of reconstruction in the South carried with it 
 the ratification of the Fourteenth Amendment by the requisite 
 number of States. The result was duly certified by Mr. Seward 
 as Secretary of State, on the twenty-eighth day of July, 1868, 
 and the Amendment was thenceforward a part of the organic 
 law of the nation. It had been carried, from first to last, as 
 a party measure — unanimously supported by the Republicans, 
 unanimously opposed by the Democrats. Its grand and benefi- 
 cent provisions failed to attract the vote of a single Democratic 
 member in any State Legislature in the whole Union. ... It 
 is very seldom in the history of political issues, even when par- 
 tisan feeling is most deeply developed, that so absolute a di- 
 vision is found as was recorded upon the question of adopting 
 the Fourteenth Amendment. It has not been easy in succeed- 
 ing years to comprehend the deep-seated, all-pervadiug hostility 
 of the Democratic party to this great measure. Even on the 
 Thirteenth Amendment containing the far more radical propo- 
 sition to abolish slavery, a few Democrats, moved by phil- 
 anthropic motives, broke from the restraint of party and 
 honoured themselves by recording their votes on the side of 
 humanity and justice ; but on the Fourteenth Amendment the 
 line of Democratic hostility in Nation and in State was abso- 
 lutely unbroken. 
 
 It seems incredible that Democrats can be satisfied with the 
 record made by their party on this most grave and important 
 question. Every one of the many objects aimed at in the 
 Fourteenth Amendment is founded upon a basis of justice, of 
 liberty, of an enlarged and enlightened nationality. Its minor 
 provisions might be regarded as temporary in their nature, but 
 its leading provisions are permanent and are essential to the 
 vitality of a true republic. Even those which may be held as 
 temporary deeply affect more than one generation of American 
 citizens, and are of themselves sufficiently important to justify 
 a great struggle for their adoption. . . . 
 
 Suffrage by the Fifteenth Amendment was made impartial, 
 
1886] CONTEMPORARY EXPOSITION 379 
 
 but not necessarily universal, to male citizens above the age of 
 twenty-one years. 
 
 The adoption of the Fifteenth Amendment seriously modified 
 the effect and potency of the second section of the Fourteenth 
 Amendment. Under that section a State could exclude the 
 negro from the right of suffrage, if willing to accept the penalty 
 of the proportional loss of representation in Congress, which 
 the exclusion of the coloured population from the basis of ap- 
 portionment would entail. But the Fifteenth Amendment took 
 away absolutely from the State the power to exclude the negro 
 from suffrage, and therefore the second section of the Four- 
 teenth Amendment can refer only to those other disqualifica- 
 tions never likely to be applied, by which a State might lessen 
 her voting population by basing the right of suffrage on the 
 ownership of real estate, or on the possession of a fixed 
 income, or upon a certain degree of education, or upon nativity, 
 or religious creed. It is still in the power of the States to apply 
 any one of these tests, or all of them, if willing to hazard the 
 penalty prescribed in the Fourteenth Amendment. But it is 
 not probable that any one of these tests will ever be applied. 
 Nor were they seriously taken into consideration when the 
 Fourteenth Amendment was proposed by Congress. Its prime 
 object was to correct the wrongs which might be enacted in 
 the South, and the correction proposed was direct and unmis- 
 takable ; viz., that the Nation would exclude the Negro from 
 the basis of apportionment wherever the State should exclude 
 him from the right of suffrage. 
 
 When therefore the nation by subsequent change in its Con- 
 stitution declared that the State shall not exclude the negro 
 from the right of suffrage, it neutralized and surrendered the 
 contingent right before held, to exclude him from the basis of 
 apportionment. Congress is thus plainly deprived by the Fif- 
 teenth Amendment of certain powers over representation in the 
 South, which it previously possessed under the provisions of 
 the Fourteenth Amendment. Before the adoption of the Fif- 
 teenth Amendment, if a State should exclude the negro from 
 suffrage, the next step would be for Congress to exclude the 
 negro from the basis of apportionment. After the adoption of 
 the Fifteenth Amendment, if a State should exclude the negro 
 
380 RECONSTRUCTION AMENDMENTS [Ch. XXIII 
 
 from suffrage, the next step would be for the Supreme Court 
 to declare that the act was unconstitutional, and therefore null 
 and void. The essential and inestimable value of the Four- 
 teenth Amendment still remains in the three other sections, 
 and preeminently in the first section. 
 
 James G. Blaine, Twenty Years of Congress. I. 536-539 ; II. 309, 418. 
 
 CRITICAL COMMENT 
 
 LOWELL (1866) 
 
 But under the Johnsonian theory of reconstruction, we shall 
 leave a population which is now four millions not only taxed 
 without representation, but doomed to be so forever without 
 any reasonable hope of relief. The true point is not as to the 
 abstract merits of universal suffrage (though we believe it the 
 only way toward an enlightened democracy and the only safe- 
 guard of popular government) , but as to whether we shall leave 
 the freedmen without the only adequate means of self-defence. 
 And however it may be now, the twenty-six States certainly 
 were the Union when they accepted the aid of these people 
 and pledged the faith of the government to their protection. 
 Jamaica, at the end of nearly thirty years since emancipation, 
 shows us how competent former masters are to accomplish the 
 elevation of their liberated slaves, even though their own inter- 
 ests would prompt them to it. Surely it is a strange plea to be 
 effective in a democratic country, that we owe these people 
 nothing because they cannot help themselves ; as if govern- 
 ments were instituted for the care of the strong only. The 
 argument against their voting which is based upon their igno- 
 rance strikes us oddly in the mouths of those whose own hope 
 of votes lies in the ignorance, or, what is often worse, the pre- 
 judice of the voters. Besides, we do not demand that the 
 seceding States should at once confer the right of suffrage on 
 the blacks, but only that they should give them the same chance 
 to attain it, and the same inducement to maJce themselves 
 worthy of it, as to every one else. 
 
 James Russell Lowell, Prose Works. V. 303, 304. 
 
1866-1896] CRITICAL COMMENT 381 
 
 COOLEY (1880) 
 
 The Last Three Amendments. — In the lapse of ninety years, 
 a stage in political history is reached in which the fears and 
 anxieties of the people took a new direction. In rapid succes- 
 sion one State after another in one-third of the Union had 
 rejected and thrown off the federal authority, and it had only 
 been restored through a war prosecuted on both sides with 
 great bitterness and with enormous destruction of life and 
 property. ... It had been found in vain that the federal 
 authorities held, and the federal courts decided, that under the 
 Constitution a State had no right to withdraw from the Union ; 
 it was undeniable that for a time certain of the States had 
 succeeded in severing their relations and setting up a new 
 government ; and though the federal authority had demon- 
 strated that it had, under the Constitution, ample power for 
 self-defence and protection, it was deemed wise and prudent to 
 require the States to surrender the institution that was the im- 
 mediate occasion of the civil war, as well as the power to deal 
 unjustly and partially with classes of the people against whom 
 there might be jealousies, prejudices, or antipathies, growing 
 out of the struggle through which the country had passed, or 
 out of some of the antecedent or concomitant circumstances. 
 While, therefore, the first amendments were for the purpose of 
 keeping the central power within due limits, at a time when the 
 tendency to centralization was alarming to many persons, the 
 last were adopted to impose new restraints on State sovereignty, 
 at a time when State powers had nearly succeeded in destroy- 
 ing the national sovereignty. 
 
 Thomas M. Coo let, Constitutional Law. 208-210. 
 BRYCE (1896) 
 
 The fourth group is the only one which marked a political 
 crisis and registered a political victory. It comprises three 
 amendments (XIII., XIV., XV.), which forbid slavery, define 
 citizenship, secure the suffrage of citizens against attempts by 
 States to discriminate to the injury of particular classes, and 
 extend Federal protection to those citizens who may suffer from 
 the operation of certain kinds of unjust State laws. These 
 
382 RECONSTRUCTION AMENDMENTS [Ch. XXIII 
 
 three amendments are the outcome of the War of Secession, 
 and were needed in order to confirm and secure for the future 
 its results. The requisite majority of States was obtained 
 under conditions altogether abnormal, some of the lately con- 
 quered States ratifying while actually controlled by the North- 
 ern armies, others as the price which they were obliged to pay for 
 the re-admission to Congress of their senators and representa- 
 tives. The details belong to history : all we need here note is 
 that these deep-reaching, but under the circumstances perhaps 
 unavoidable, changes were carried through not by the free will 
 of the peoples of three-fourths of the States, but under the pres- 
 sure of a majority which had triumphed in a great war, and used 
 its command of the National government and military strength of 
 the Union to effect purposes deemed indispensable to the recon- 
 struction of the Federal system. 
 
 James Bkyce, The American Commonwealth.^ 256. 
 
 DUNNING (1897) 
 
 They found a constitutional basis for the law in the Thir- 
 teenth Amendment. Slavery and involuntary servitude were 
 by that article prohibited ; and, by the second section, Con- 
 gress, and not the state legislatures, was authorized to enforce 
 the prohibition. What constituted slavery and involuntary 
 servitude, in the sense of the amendment? Slavery and lib- 
 erty, it was answered, are contradictory terms. If slavery is 
 prohibited, civil liberty must exist. But civil liberty consists 
 in natural liberty, as restrained by human laws for the advan- 
 tage of all, provided that these restraints be equal to all. A 
 statute which is not equal to all is an encroachment on the lib- 
 erty of the deprived persons, and subjects them to a degree of 
 servitude. It is the duty of Congress, therefore, to counteract 
 the effects of any such state laws. Thus the constitutionality 
 of the bill was maintained. 
 
 . . . The content of the proposed Fourteenth Amendment 
 marks very accurately the progress that had been made by the 
 spring of 1866 in ideas as to the extent to which reconstruction 
 should go. In the first section, the desire of the conservative 
 Republicans to put the civil rights of the negroes under the 
 protection of the United States was gratified. The fourth 
 
 1 Copyright, 1896, by the Macmillan Co. 
 
1896-1897] CRITICAL COMMENT 383 
 
 guaranteed the financial integrity of the government, and thus 
 satisfied those who feared some assertion of state rights that 
 might legalize debts incurred in opposition to the national au- 
 thority. These two provisions constituted the limitations upon 
 the powers of the states that were generally recognized as un- 
 avoidable consequences of the war. The second section of the 
 amendment dealt with matters upon Avhich opinion in the domi- 
 nant party was far from certain and harmonious. It embodied 
 a very clumsy aud artificial solution of the suffrage problem. 
 The alternative presented to the states, of enfranchising the 
 blacks or losing proportionally in representation, was a mere 
 temporary compromise between two party factions. It was the 
 most that the friends of negro suffrage could secure at this 
 stage of the process ; but there was no indication that they 
 would be satisfied with this. The third section of the amend- 
 ment was merely incidental to the conflict between Congress 
 and President Johnson. The President's very free exercise of 
 the pardoniug power interfered with the progress of the legis- 
 lature's policy, and no method of checking this interference 
 seemed so feasible as a constitutional amendment. As a whole, 
 the amendment was tentative. It betokened a longing for a 
 definite settlement of the two great questions of the day, tem- 
 pered by dread of an adverse public sentiment. 
 
 . . . The " fundamental conditions" which afforded the only 
 basis for Congressional maintenance of negro suffrage in the 
 restored states were regarded by a large majority of constitu- 
 tional lawyers in both parties as of doubtful validity. Under 
 the circumstances a further amendment to the constitution was 
 the only resort that could be depended upon for the end de- 
 sired. Hence the Fifteenth Amendment was, after a long and 
 ardent discussion of the whole field of political philosophy, sent 
 to the state legislatures by resolution finally passed February 
 26, 1869. 
 
 ... On March 30, 1870, the ratification of the Fifteenth 
 Amendment had been proclaimed, and just two months later 
 the first enforcement act became law. By the policy thus ex- 
 pressed the issue was definitely made up which ended in the 
 undoing of the reconstruction. Seven unwholesome years were 
 required to demonstrate that not even the government which 
 
384 RECONSTRUCTION AMENDMENTS [Ch. XXIII 
 
 had quelled the greatest rebellion in history could maintain the 
 freedmen in both security and comfort on the necks of their 
 former masters. The demonstration was slow, but it was 
 effective and permanent. 
 
 William A. Dunning, Essays on the Civil War and Reconstruction. 93, 
 252, passim. 
 
 Mclaughlin (1899) 
 
 It will be remembered that the Emancipation Proclamation 
 declared free all slaves within those parts of the South then in 
 open rebellion. This was confessedly a war measure — like 
 any other confiscation of property, an act of war. It did not 
 destroy slavery in the States not in rebellion. Moreover, some 
 persons believed that the President had exceeded his authority 
 in issuing such a proclamation. In the early part of 1864 a 
 vote on the question of submitting a constitutional amendment 
 abolishing slavery everywhere was taken into Congress. The 
 necessary two-thirds vote could not be secured in the House, 
 though the Senate passed the measure by a large majority. 
 After the election, carried by the Republicans on a distinctly 
 anti-slavery platform, abolition assumed new strength. The 
 President in his annual message advocated the adoption of the 
 amendment. A great debate in the House followed. The vote 
 was one hundred and nineteen ayes to fifty-sis noes — seven 
 more than the required two-thirds. In the homely, truthful 
 phrase of Lincoln, the "great job" was ended. . . . 
 
 The iDrinciple of the ordinance of 1787 was, in almost the 
 exact words of that document, made applicable to the whole 
 Union ; the great curse that had separated the American 
 people into two bitterly hostile sections was to be cast aside 
 forever. The hopes of the future were for reorganization, a 
 re-establishment of sympathy and fellow-feeling between North 
 and South, now that the cause of enmity and division was no 
 more. As Lincoln pointed out, the amendment meant the 
 "maintenance" of the Union. . . . 
 
 It was next determined to put the Civil Rights Bill into the 
 form of a constitutional amendment, where its principles would 
 be permanent and safe from violation. The Fourteenth Amend- 
 ment was therefore agreed upon and offered to the States (June, 
 
1897-1899] CRITICAL COMMENT 385 
 
 1866), for adoption. ... It declared that no State should make 
 or enforce any law abridging the " privileges or immunities of 
 citizens of the United States," or deprive any person of " life, 
 liberty or property without due process of law," or deny to any 
 person "the equal protection of the laws." The Republicans 
 saw that by the freeing of the blacks they bad actually increased 
 the political strength of the Southern States, because the three- 
 fifths rule would no longer apply, but all the negroes would be 
 counted in determining the representative population. Some 
 were desirous of giving the negroes the suffrage immediately by 
 National act. Others hesitated. All, however, desired to pre- 
 vent the Southern States from reaping this political advantage 
 from emancipation, unless they allowed the blacks to vote. It 
 was therefore decided that if the negroes were not given the 
 suffrage by a State voluntarily, they should not be counted 
 in determining the basis of representation. For these rea- 
 sons the second section of the Fourteenth Amendment was 
 added. . . . 
 
 Such was the Fourteenth Amendment, by far the greatest 
 change made in the Constitution, since its adoption. There 
 was some difficulty, as we shall see, in securing its ratification, 
 the Southern States refusing to accept it; two years passed 
 before it was finally ratified (1868), but we may notice at this 
 time how it modified the Constitution when once it became a 
 part of the fundamental law. Before this amendment was 
 passed the subject of suffrage was solely a State affair, as long 
 as the State had a "republican form of government." So, too, 
 the State had complete control over its citizens and could be as 
 tyrannical as it saw fit, provided that it did not interfere with 
 the relations between a person and the National Government or 
 violate the few express prohibitions in the National Constitu- 
 tion. By this amendment the nation intervened to protect the 
 citizens of the State against unjust legislation or action of a 
 State. Thus it will be seen the situation had entirely altered 
 from what it was in 1788-90. 
 
 Then it was thought necessary to shield the citizen from the 
 possible tyranny of the National Government, and to this end 
 the first ten amendments were adopted. . . . 
 
 In 1869 the Fifteenth Amendment was submitted to the 
 
 25 
 
^86 kncONSTRliCTtON AMENDMENTS [Ch. XXIII 
 
 States for adoption. It declared: "The right of citizens of 
 the United States to vote shall not be denied or abridged by the 
 United States or by any State on account of race, colour, or 
 previous condition of servitude." Secretary Fish announced, 
 March 30, 1870, that it had " become valid to all intents and 
 purposes, as part of the Constitution of the United States." 
 
 The acceptance of the Fifteenth Amendment as part of the 
 fundamental law of the nation did not do away with the troubles 
 and distress that grew out of the rebellion. The corruption 
 of the carpet-bag governments, built on negro suffrage, was 
 proof enough that slavery had been a poor schoolmaster for 
 freedom. 
 
 Andrew C. McLa.ughlin, History of the American Nation. 463-483. 
 
 HART (1899) 
 
 So far as the existence of slavery went, the Thirteenth 
 Amendment, declared to be in force in December, 1865, was a 
 constitutional guarantee which superseded the revocable aboli- 
 tion acts of the States reconstructed during that year ; and it 
 took out of the list of conditions which might be imposed upon 
 the States an acknowledgment of the freedom of the former 
 slaves ; it superseded also the special conditions of the amnesty 
 proclamations of Lincoln and Johnson. There still remained a 
 necessity for statutes or constitutional amendments to define 
 the judicial and other civil rights of the negro. . . . 
 
 During 1865 both the legal and the economic status of the 
 negroes were confused and unsatisfactory. . . . 
 
 As soon as it became evident that Johnson had no interest 
 in negro suffrage, and was willing to reinstate by his pardoning 
 power a large proportion of those who had been concerned in 
 the rebellion. Chase [Salmon P. Chase] found himself separated 
 from the President, who no longer invited an expression of his 
 opinion. At the same time his friends in the South assured 
 him that, without protection from the United States, the Union 
 men would be completely overborne and the freedman in 
 danger. . . . 
 
 Chase's sympathy now began to turn towards the congres- 
 sional plan. . . . This was a legislative reversal of whatever 
 was left of the Dred Scott decision. . . . 
 
1899] CntTICAL COMMENT 387 
 
 The act was certain to arouse the opposition of the South, 
 and was itself liable to repeal. It seemed therefore desirable 
 to put its provisions into a constitutional amendment, which 
 would forever protect the rights of the negroes and which at the 
 same time would take out of the hands of the President the 
 restoration of former rebels to their political status. . . . 
 
 The Southern States duly paid the price of their readmission 
 by ratifying the Fourteenth Amendment, and from 1868 they 
 were gradually allowed to reoccupy seats in Congress. . . . 
 As might have been expected, so soon as the Southern States 
 were again admitted to seats in Congress there was a tendency 
 in the South to put an end by violence to negro suffrage ; hence 
 Congress passed a statute, the so-called Civil Rights Bill, un- 
 der the Fourteenth and Fifteenth Amendments, to protect the 
 negroes. 
 
 Albert Bxjshnell Haet, Salmon Portland Chase. 335, 381. 
 
388 COLONIES AND DEPENDENCIES [Ch. XXIV 
 
 Chaptee XXIV 
 
 LIBERTY IN UNITED STATES COLONIES AND 
 DEPENDENCIES (1898-1899) 
 
 SUGGESTIONS 
 
 These documents contain suggestions as to the prospective policy of 
 government in the newly acquired teri'itorial possessions of Cuba, 
 Porto Rico, and the Philippine Islands. 
 
 The critical comment which follows must of necessity become in a 
 few years a part of the contemporary exposition. It needs an his- 
 torical perspective, which the future alone can give, for the proper 
 discussion of these documents. 
 
 But, as the making of history is as important a study as the 
 chronicles of the past, the student should look at present issues 
 with keen interest. He must appreciate that to-day's events belong 
 to a succession of conditions in a general movement of progress; 
 from whatever political point of view he approaches the subject he 
 will find these historical conditions the same. 
 
 Out of the vast amount of oratory and writing for and against the 
 present policy of the administration, a few masters of constitutional 
 history have been chosen to give expression in criticism. 
 
 DOCUMENTS 
 Extracts from President McKinley's Annual Message, Dec. 5, 1898 
 
 Messages of ^^ ^^e message of April 11, 1898, I announced 
 the President, that with this last overture in the direction of im- 
 mediate peace in Cuba and its disappointing re- 
 ception by Spain the effort of the Executive was 
 brought to an end. I again reviewed the alter- 
 native courses of action which had been proposed, 
 concluding that the only one consonant with inter- 
 national policy and compatible with our firm-set 
 historical traditions was intervention as a neutral to 
 
 X. 163-176. 
 
1898] TEXT 389 
 
 stop the war and elieck the hopeless sacrifice of life, 
 even though that resort involved " hostile constraint 
 upon both the parties to the contest, as well to en- 
 force a truce as to guide the eventual settlement." 
 The grounds justifying that step were the interests 
 of humanity, the duty to protect the life and prop- 
 erty of our citizens in Cuba, the right to check injury 
 to our commerce and people through the devastation 
 of the island, and, most important, the need of re- 
 moving at once and forever the constant menace 
 and the burdens entailed upon our Government by 
 the uncertainties and perils of the situation caused 
 by the unendurable disturbance in Cuba. I said: 
 
 "The long trial has proved that the object for 
 which Spain has waged the war cannot be attained. 
 The fire of insurrection may flame or may smoulder 
 with varying seasons, but it has not been and it is 
 plain that it cannot be extinguished by present 
 methods. The only hope of relief and repose from 
 a condition which can no longer be endured is the 
 enforced pacification of Cuba. In the name of hu- 
 manity, in the name of civilization, in behalf of 
 endangered American interests which give us the 
 right and the duty to speak and to act, the war 
 in Cuba must stop." 
 
 In view of all this the Congress was asked to By the 
 authoiize and empower the President to take Message of 
 measures to secure a full and final termination of ^ggg ' 
 hostilities between Spain and the people of Cuba 
 and to secure in the island the establishment of 
 a stable government, capable of maintainiug order 
 and observing its international obligations, insuring 
 peace and tranquillity and the security of its citizens 
 as well as our own, and for the accomplishment of 
 those ends to use the military and naval forces of 
 the United States as might be necessary, with added 
 authority to continue generous relief to the stai'ving 
 people of Cuba. 
 
 The response of the Congress, after nine days of 
 
390 
 
 COLONIES AND DEPENDENCIES [Ch. XXIV 
 
 Cuban Inde- 
 pendence. 
 
 Duty of the 
 
 United 
 
 States. 
 
 Constitution, 
 Art. ii. sect. 
 2, §1. 
 
 Attitude of 
 tlie United 
 States to- 
 wards Cuba. 
 
 earnest deliberation, during which the almost unani- 
 mous sentiment of your body was developed on 
 every point save as to the expediency of coupling 
 the proposed action with a formal recognition of the 
 Republic of Cuba as the true and lawful government 
 of that island — a proposition which failed of adop- 
 tion — the Congress, after conference, on the 19th 
 of April, by a vote of 42 to 35 in the Senate and 
 311 to 6 in the House of Representatives, passed 
 the memorable joint resolution declaring — 
 
 ' ' First. That the people of the island of Cuba are, 
 and of right ought to be, free and independent. 
 
 " Second. That it is the duty of the United States 
 to demand, and the Government of the United States 
 does hereby demand, that the Government of Spain 
 at once relinquish its authority and government in 
 the island of Cuba and withdraw its land and naval 
 forces from Cuba and Cuban waters. 
 
 " Third. That tlie President of the United States 
 be, and he hereby is, directed and empowered to use 
 the entire land and naval forces of the United States 
 and to call into the actual service of the United 
 States the militia of the several States to such ex- 
 tent as may be necessary to carry these resolutions 
 into effect. 
 
 "Fourth. That the United States hereby dis- 
 claims any disposition or intention to exercise sov- 
 ereignty, jurisdiction, or control over said island 
 except for the pacification thereof, and asserts its 
 determination when that is accomplished to leave 
 the government and control of the island to its 
 people." 
 
 This resolution was appi'oved by the Executive on 
 the next day, April 20. . . . 
 
 After the instruction reached General "Woodford 
 on the morning of April 23, but before he could 
 present it, the Spanish minister of state notified 
 him that upon the President's approval of the joint 
 resolution the Madrid Government, regarding the 
 
1898] TEXT 391 
 
 act as " equivalent to an evident declaration of war," 
 
 had ordered its minister in Washington to withdraw, 
 
 thereby breaking off diplomatic relations between 
 
 the two countries and ceasing all official communi- 
 
 cation between their respective representatives, relations 
 
 General Woodford thereupon demanded his pass- with Spain _ 
 
 ports and quitted Madrid the same day. pS^ '^^ *^''' 
 
 Spain having thus denied the demand of the 
 United States and initiated that complete form of 
 rupture of relations which attends a state of war, 
 the executive powers authorized by the resolution 
 were at once used by me to meet the enlarged con- 
 tingency of actual war between sovereign states. 
 
 I do not discuss at this time the Government or 
 the future of the new possessions which will come 
 to us as the result of the war with Spain. Such dis- 
 cussion will be appropriate after the treaty of peace 
 shall be ratified. In the meantime and until the 
 Congress has legislated otherwise it will be my duty 
 to continue the military governments which have 
 existed since our occupation and give to the people 
 security in life and property and encouragement 
 under a just and beneficent rule. 
 
 As soon as we are in possession of Cuba and „ 
 have pacified the island it will be necessary to give policy. 
 aid and direction to its people to form a govern- 
 ment for themselves. This should be undertaken 
 at the earliest moment consistent with safety and 
 assured success. It is important that our relations 
 with this people shall be of the most friendly char- 
 acter and our commercial relations close and recip- 
 rocal. It should be our duty to assist in every 
 proper way to build up the waste places of the 
 island, encourage the industry of the people, and Immediate 
 assist them to form a government which shall be prove sani-' 
 free and independent, thus realizing the best aspira- tary, educa- 
 tions of the Cuban people. muScipal*^ 
 
 Spanish rule must be replaced by a just, benevo- life. 
 
392 COLONIES AND DEPENDENCIES [Ch. XXIV 
 
 lent, and humane government, created by the people 
 of Cuba, capable of performing all international 
 obligations, and which shall encourage thrift, in- 
 dustry, and prosperity and promote peace and 
 good will among all of the inhabitants, whatever 
 may have been their relations in the past. Neither 
 revenge nor passion should have a place in the new 
 government. Until there is complete tranquillity in 
 the island and a stable government inaugurated 
 military occupation will be continued. 
 
 Extracts from President McKinley's Annual Message, Dec. 5, 1899 
 
 Congressional My Annual Message of last year was neces- 
 Record bQ sarily devoted in great part to a consideration of 
 29-36, passnn! the Spanish war and of the results it wrought and 
 the conditions it imposed for the future. I am 
 gratified to announce that the treaty of peace has 
 restored friendly relations between the two powers. 
 Effect has been given to its most important pro- 
 visions. The evacuation of Porto Rico having al- 
 ready been accomplislied on the 18th of October, 
 1898, nothing remained necessary there but to con- 
 tinue the provisional military control of the island 
 until the Congress should enact a suitable govern- 
 ment for the ceded territory. Of the character and 
 scope of the measures to that end I shall treat in 
 another part of this Message. 
 
 The withdrawal of the authority of Spain from 
 the island of Cuba was effected by the 1st of Jan- 
 uary, so that the full re-establishment of peace 
 found the relinquished territory held by us in trust 
 for the inhabitants, maintaining, under the direc- 
 tion of the Executive such government and control 
 therein as should conserve public order, restore the 
 productive conditions of peace so long disturbed 
 by the instability and disorder which prevailed for 
 the greater part of the preceding three decades, 
 and build up that tranquil development of the do- 
 
1898-1899] TEXT 393 
 
 mestic state whereby alone can be realized the high 
 purpose, as proclaimed iu the joint resolution 
 adopted by the Congress on the 19th of April, 
 1898, by which the United States disclaimed any 
 disposition or intention to exercise sovereignty, ju- 
 risdictiou or control over Cuba, except for the |g ^f great" 
 pacification thereof, and asserted its determination, significance, 
 when that was accomplished to leave the govern- 
 ment and control of the island to its people. The 
 pledge contained in this resolution is of the highest 
 honorable obligation and must be kept. 
 
 I believe that substantial progress has been made 
 in this direction. All the administrative measures Keforms be- 
 adopted in Cuba have aimed to fit it for a regen- S^^- 
 erated existence by enforcing the supremacy of law 
 and justice ; by placing wherever practicable the 
 machinery of administration in the hands of the 
 inhabitants ; by instituting needed sanitary reforms ; 
 by spreading education ; by fostering industry and 
 trade ; by inculcating public morality, and, in short, 
 by taking every rational step to aid the Cuban 
 people to attain to that plane of self-conscious re- 
 spect and self-reliant unity which fits an enlight- 
 ened community for self-government within its 
 own sphere, while enabling it to fulfil all outward 
 obligations. 
 
 This nation has assumed before the world a grave 
 responsibility for the future good government of 
 Cuba, We have accepted a trust the fulfilment of 
 which calls for the sternest integrity of purpose and 
 the exercise of the highest wisdom. The new Cuba Cuba'sfutm-e 
 yet to arise from the ashes of the past must needs prosperity. 
 be bound to us by ties of singular intimacy and 
 strength if its enduring welfare is to be assured. 
 Whether those ties shall be organic or conventional, 
 the destinies of Cuba are in some rightful form and 
 manner irrevocably linked with our own, but how 
 and how far is for the future to determine in the 
 ripeness of events. Whatever be the outcome, we 
 
394 COLONIES AND DEPENDENCIES [Ch. XXIV 
 
 must see to it that free Cuba be a reality, not a 
 name ; a perfect entity, not a hasty experiment 
 bearing within itself the elements of failure. Our 
 mission, to accomplish which we took up the wager 
 of battle, is not to be fulfilled by turning adrift any 
 loosely framed commonwealth to face the vicissi- 
 tudes which too often attend weaker states whose 
 natural wealth and abundant resources are offset by 
 the incongruities of their political organization and 
 the recurring occasions for internal rivalries to sap 
 their strength and dissipate their energies. The 
 greatest blessiug which can come to Cuba is the 
 restoration of her agricultural and industrial pros- 
 perity, which will give employment to idle men and 
 re-establish the pursuits of peace. This is her chief 
 and immediate need. . . . 
 
 The future government of the Philippines rests 
 with the Congress of the United States. Few 
 Cono-ress to graver responsibilities have ever been confided to 
 be held re- us. If we accept them in a spirit worthy of our 
 governmenT ^"^^e and our traditions, a great opportunity comes 
 in the Philip- with them. The islands lie under the shelter of 
 pines. Q^j. gjjg_ Xhey are ours by every title of law 
 
 and equity. They cannot be abandoned. If we 
 desert them we leave them at once to anarchy and 
 finally to barbarism. We fiiug them, a golden 
 apple of discord, among the rival powers, no one 
 of which could permit another to seize them un- 
 questioned. Their rich plains and valleys would 
 be the scene of endless strife and bloodshed. The 
 advent of Dewey's fleet in Manila Bay instead 
 of being, as we hope, the dawn of a new day of 
 freedom and progress, will have been the beginning 
 of an era of misery and violence worse than any 
 which has darkened their unhappy past. The 
 suggestion has been made that we could renounce 
 our authority over the islands and, giving them 
 independence, could retain a protectorate over 
 them. This proposition will not be found, I am 
 
1899] TEXT 395 
 
 sure, worthy of your serious attention. Such an Constitution, 
 arrangement would involve at the outset a cruel ^^*- ^- s®^*- 
 breach of faith. It would place the peaceable and ' 
 loyal majority, who ask nothing better than to ac- 
 cept our authority, at the mercy of the minority of 
 armed insurgents. It would make us responsible 
 for the acts of the insurgent leaders and give us no 
 power to control them. It would charge us with 
 the task of protecting them against each other and 
 defending them against any foreign power with which 
 they choose to quai-rel. In short, it would take from 
 the Congress of the United States the power of de- 
 claring war and vest that tremendous prerogative in 
 the Tagal leader of the hour. 
 
 It does not seem desirable that I sbould recom- 
 mend at this time a specific and final form of gov- 
 ernment for these islands. When peace shall be 
 restored, it will be the duty of Congress to con- 
 struct a plan of government which shall establish 
 and maintain freedom and order and peace in 
 the Philippines. The insurrection is still exist- 
 ing, and when it terminates further information 
 will be required as to the actual condition of affairs 
 before inaugurating a permanent scheme of civil 
 government. . . . 
 
 No effort will be spared to build up the waste Future de- 
 places desolated by war and by long years of mis- velopment 
 government. We shall not wait for the end of Philippine 
 strife to begin the beneficent work. We shall con- Islands, 
 tinue, as we have begun, to open the schools and 
 the churches, to set the courts in operation, to 
 foster industry and trade and agriculture, and in 
 every way in our power to make these people 
 whom Providence has brought within our jurisdic- 
 tion feel that it is their liberty and not our power, 
 their welfare and not our gain, we are seeking to 
 enhance. Our flag has never waved over any com- 
 munity but in blessing. I believe the Filipinos will 
 soon recognize the fact that it has not lost its gift 
 
396 
 
 COLONIES AND DEPENDENCIES [Ch. XXIV 
 
 Porto Kican 
 policy. 
 
 Removal of 
 all military 
 authority. 
 
 Local self- 
 government. 
 
 of benediction in its world-wide journey to their 
 shores. . . . 
 
 The time is ripe for the adoption of a tempo- 
 rary form of government for this island [Porto 
 Rico]. . . . 
 
 The system of civil jurisprudence now adopted 
 by the people of this island is described by compe- 
 tent lawyers who are familiar with it, as thoroughly 
 modern and scientific, so far as it relates to matters 
 of internal business, trade production, and social 
 and private right in general. The cities of the 
 island are governed under charters which prob- 
 ably require very little or no change. So that with 
 relation to matters of local concern and private 
 right, it is not probable that much, if any, legis- 
 lation is desirable ; but with reference to public 
 administration and the relations of the island to 
 the Federal Government, there are many matters 
 which are of pressing urgency. . . . 
 
 It is desirable that the government of the island 
 under the law of belligerent right, now maintained 
 through tlie Executive Department, should be super- 
 seded by an admmistration entirely civil in its 
 nature. For present purposes I recommend that 
 Congress pass a law for the organization of a tem- 
 porary government, which shall provide for the 
 appointment by the President, subject to confir- 
 mation by the Senate, of a governor and such other 
 officers as the general administration of the island 
 may require, and that for legislative purposes upon 
 subjects of a local nature not partaking of a Fed- 
 eral character, a legislative council, composed partly 
 of Porto Ricans and partly of citizens of the United 
 States, shall be nominated and appointed by the 
 President, subject to confirmation by the Senate, 
 their acts to be subject to the approval of the Con- 
 gress or the President prior to going into effect. In 
 the municipalities and other local subdivisions I 
 recommend that the principle of local self-govern- 
 
1899] TEXT 397 
 
 ment be applied at once, so as to enable the intel- 
 ligent citizens of the island to participate in their 
 own government and to learn by practical experi- 
 ence the duties and requirements of a self-contained 
 and self-governing people. I have not thought it 
 wise to commit the entire government of the island 
 to oiScers selected by the people, because I doubt 
 whether in habits, training and experience they are 
 such as to fit them to exercise at once so large a de- 
 gree of self-government; but it is my judgment 
 and expectation that they will soon arrive at an 
 attainment of experience and wisdom and self-con- 
 trol that will justify conferring upon them a much 
 larger participation in the choice of their insular 
 oflScers. 
 
 The fundamental requirement for these people Eacial char- 
 as for all people, is education. The free school- acteristics to 
 house is the best preceptor for citizenship. In the ered"^^^*^" 
 introduction of modern educational methods care, 
 however, must be exercised that changes be not 
 made too abruptly and that the history and racial 
 peculiarities of the inhabitants shall be given due 
 weight. Systems of education in these new pos- 
 sessions founded upon common-sense methods, 
 adapted to existing conditions and looking to the ernment ; 
 future moral and industrial advancement of the civil rights, 
 people, will commend to them in a peculiarly effec- 
 tive manner the blessings of free government. 
 
 The love of law and the sense of obedience and 
 submission to the lawfully constituted judicial tri- 
 bunals are embedded in the hearts of our people, 
 and any violation of these sentiments and disre- 
 gard of their obligations justly arouses public con- 
 demnation. The guarantees of life, liberty, and of 
 civil rights should be faithfully upheld ; the right 
 of trial by jury respected and defended. 
 
398 COLONIES AND DEPENDENCIES [Ch. XXIV 
 
 CONTEMPORARY EXPOSITION 
 
 PRESIDENT McKINLEY (1899) 
 
 We have now ended the war with Spain. The treaty has 
 been ratified by the votes of more than two-thirds of the Senate 
 of the United States and by the judgment of nine-tenths of its 
 people. No nation was ever more fortunate in war or more 
 honourable in its negotiations in peace. Spain is now elinxinated 
 from the problem. It remains to ask what we shall now do. 
 I do not intrude upon the duties of Congress or seek to antici- 
 pate or forestall its action. I only say that the treaty of peace, 
 honourably secured, having been ratified by the United States, 
 and, as we confidently expect, shortly to be ratified in Spain, 
 Congress will have the power, and I am sure the purpose, to do 
 what in good morals is right and just and humane for these 
 peoples in distant seas. 
 
 It is sometimes hard to determine what is best to do, and the 
 best thing to do is oftentimes the hardest. The prophet of evil 
 would do nothing because he flinches at sacrifice and effort, and 
 to do nothing is easiest and involves the least cost. On those 
 who have things to do there rests a responsibility which is not 
 on those who have no obligations as doers. If the doubters 
 were in a majority, there would, it is true, be no labour, no sac- 
 rifice, no anxiety and no burden raised or carried ; no contribu- 
 tion from our ease and purse and comfort to the welfare of 
 others, or even to the extension of our resources to the welfare 
 of ourselves. There would be ease, but alas! there would be 
 nothing done. 
 
 But grave problems come in the life of a nation, however 
 much men may seek to avoid them. They come without our 
 seeking ; why, we do not know, and it is not always given us to 
 know; but the generation on which they are forced cannot 
 avoid the responsibility of honestly striving for their solution. 
 We may not know precisely how to solve them, but we can 
 make an honest effort to that end, and if made in conscience, 
 justice and honor it will not be in vain. 
 
 The future of the Philippine Islands is now in the hands of 
 the American people. Until the treaty was ratified or rejected 
 
1899] CONTEMPORARY EXPOSITION 399 
 
 the Executive Department of this government could only pre- 
 serve the peace and protect life and property. . . . 
 
 I have no light or knowledge not common to my countrymen. 
 I do not prophesy. The present is all absorbing to me, but I 
 cannot bound my vision by the blood-stained trenches around 
 Manila, where every red drop, whether from the veins of an 
 American soldier or a misguided Filipino, is anguish to my 
 heart ; but by the broad range of future years, when that group 
 of islands, under the impulse of the year just passed, shall have 
 become the gems and glories of those tropical seas ; a land of 
 plent}' and of increasing possibilities ; a people redeemed from 
 savage indolence and habits, devoted to the arts of peace, in 
 touch with the commerce and trade of all nations, enjoying the 
 blessings of freedom, of civil and religious liberty, of education 
 and of homes, and whose children and children's children shall 
 for ages hence bless the American Republic because it emanci- 
 pated and redeemed their fatherland and set them in the path- 
 way of the world's best civilization. 
 
 William McKinlby, Speech delivered at the Home Market Club, in Boston 
 Herald, February 17, 1899. 
 
 SECRETARY LONG (1899) 
 
 But, on the other hand, is the view held, I think, by the 
 great majority of our people that we cannot thus easily, having 
 once put our hands to the plough, look back, and that events 
 not within our control have brought us to responsibilities which 
 we cannot disregard and let alone, but which we must face and 
 meet. The matter is one of great moment. I most heartily 
 wish it had never confronted us. I wish the world would kindly 
 let up for a while and not move so fast. I wish, also, that 
 youth would stay. I would rather be a boy again than to be 
 Secretary of the Navy, as I am, or President of the United 
 States, as of course I could be if I would yield to the solicita- 
 tions of my friends and accept the office. But I think it is a 
 mistake to say that it is beyond the abilit}'^ of the American peo- 
 ple to deal with a problem with which other nations have suc- 
 cessfully dealt, or that it is a harder problem than many problems 
 which are upon us already. 
 
 The problem of the immense accumulations of wealth ; the 
 
400 COLONIES AND DEPENDENCIES [Ch. XXIV 
 
 municipal problem of our great cities, soon gathering within their 
 limits more than balf the population of the country ; the prob- 
 lems of capital and labor ; the problems of social crimes, intem- 
 perance and political integrities, are even harder and fraught 
 with graver dangers. Indeed, I am not sure that this new fric- 
 tion in the far-off tropics may not be, when applied to these 
 older maladies in the body politic, a sort of what the physicians 
 call a counter-irritant — an outlet for the pent-up fevers now in 
 the national blood. 
 
 There are those who regard every new crisis as what they 
 call " the beginning of the end." But this phrase is like the 
 foolish nurse's cry of " ghost " to a child. The beginning of 
 the end was long ago — at the very birth of the Republic. God 
 has so ordered the laws of growth that no life, of plant, or man, 
 or nation, works out its destiny and bears its fruit except by 
 ripening to its completion. First the blade, then the ear, then 
 the full corn in the ear. The glory of Greece and of Rome is 
 in the culmination of their civilization, art, literature and politi- 
 cal power ; and therein is their contribution to the higher civili- 
 zations which have succeeded. 
 
 So it must needs be with the great powers of to-day. Great 
 Britain and Germany and America. . . . 
 
 Why doubt and repine, when the time of doubting and repin- 
 ing is inexorably past, and when doubting and repining can now 
 do no good? Why shall not the United States, now that these 
 lauds and tribes have been intrusted to its disposition, enter upon 
 the trust thus imposed upon it, with the determination that, as it 
 began by freeing them from the yoke of oppression, it will go 
 on and insure them still larger blessings of liberty and civiliza- 
 tion, and will so bear itself toward them that in securing their 
 welfare it shall also promote its own, and, as always hap- 
 pens when men or nations co-operate in the spirit of justice 
 and good will, the reward shall come to both in their mutual 
 increase? . . . 
 
 Meantime, our duty is to meet the responsibility that is upon 
 us. Undoubtedly it would be easier if we could shift it from 
 our shoulders and lay it down. It is with a wrench that any 
 man, especially any son of New England familiar with its tra- 
 ditions and recalling its charms of provincial life, becomes aware 
 
1899-1900] CONTEMPORARY EXPOSITION 401 
 
 that these must, betimes, give way to larger demands and more 
 trying exigencies. 
 
 And yet, the fields that are before us are not altogether un- 
 trodden, [t is not a new thing in the history of the world for 
 an enlightened and civilized nation to deal with the less fortu- 
 nate islands of remote seas. 
 
 A Christian nation should not lose heart at the opportunity of 
 carrying its education, its industries, its institutions and its un- 
 told blessings to other and less fortunate people. For one, I 
 trust with all my heart that the result of our new relations with 
 the Philippines may be to aid them to the acquirement of the 
 comforts, happiness and benefactions of our civilization ; to 
 educate them to their political elevation and to help them to 
 the establishment of their own self-government and their own 
 free existence. 
 
 John D. Long, Address before the Home Market Club, in Boston Herald, 
 February 17, 1899. 
 
 R. OLNET (1900) 
 
 Hereafter as heretofore, our general policy must be and will 
 be non-interference in the internal affairs of European states — 
 hereafter as heretofore we shall claim paramountcy in things 
 purely American — and hereafter as heretofore we shall antago- 
 nize any attempt by an European Power to forcibly plant its 
 flag on the American continents. It cannot be doubted, how- 
 ever, that our new departure not merely unties our hands but 
 fairly binds us to use them in a manner we have thus far not 
 been accustomed to. We cannot assert ourselves as a Power 
 whose interests and sympathies are as wide as civilization with- 
 out assuming obligations corresponding to the claim — obliga- 
 tions to be all the more scrupulously recognized and performed 
 that they lack the sanction of physical force. The first duty of 
 every nation, as already observed, is to itself — is the promo- 
 tion and conservation of its own interests. Its position as an 
 active member of the international fainily does not require it 
 ever to lose sight of that principle. But, just weight being 
 given to that principle, and its abilities and resources and op- 
 portunities permitting, there is no reason why the United States 
 should not act for the relief of suffering humanity and for the 
 
 26 
 
402 COLONIES AND DEPENDENCIES [Ch. XXIV 
 
 advancement of civilization wherever and whenever such action 
 would be timely and effective. Should there, for example, be a 
 recurrence of the Turkish massacres of Armenian Christians, 
 not to stop them alone or in concert with others, could we do 
 so without imperilling our own substantial interests, would be 
 unworthy of us and inconsistent with our claims and aspirations 
 as a great Power. We certainly could no longer shelter our- 
 selves behind the time-honored excuse that we are an American 
 Power exclusively, without concern with the affairs of the world 
 at large. 
 
 Richard Olney, Growth of our Foreign Policy, in l^he Atlantic Monthly, 
 LXXXV. 289-301 (March, 1900). 
 
 CRITICAL COMMENT 
 
 CHARLES FRANCIS ADAMS (1898) 
 
 Next as regards our fundamental principles of equality of 
 human rights, and the consent of the governed as the only Just 
 basis of all government. The presence of the inferior races on 
 our own soil, and our new problems connected with them in our 
 dependencies, have led to much questioning of the correctness 
 of those principles, which, for its outspoken frankness, at least, 
 is greatly to be commended. It is argued that these, as princi- 
 ples, in the light of modern knowledge and conditions, are of 
 doubtful general truth and limited application. True, when 
 confined and carefully applied to citizens of the same blood 
 and nationality ; questionable, when applied to human beings 
 of different race in one nationality; manifestly false, in the case 
 of races less developed, and in other, especially tropical, coun- 
 tries. As fundamental principles, it is admitted, they were 
 excellent for a young people struggling into recognition and 
 limiting its attention narrowly to what only concerned itself; 
 but have we not manifestly outgrown them, now that we our- 
 selves have developed into a great World Power? For such 
 there was and necessarily always will be, as between the superior 
 and the inferior races, a manifest common sense foundation in 
 caste, and in the rule of might when it presents itself in the 
 form of what we are pleased to call Manifest Destiny. As to 
 government being conditioned on" the consent of the governed, 
 
1898] CRITICAL COMMENT 403 
 
 it is obviously the bounclen duty of the superior race to hold the 
 inferior race in peaceful tutelage, and protect it against itself ; 
 and, furthermore, when it comes to deciding the momentous 
 question of what races are superior and what inferior, what 
 dominant and what subject, that is of necessity a question to 
 be settled between the superior race and its own conscience ; 
 and one in regard to the correct settlement of which it indicates 
 a tendency at once unpatriotic and " pessimistic," to assume 
 that America could by any chance decide otherwise than cor- 
 rectly. Upon that score we must put implicit confidence in the 
 sound instincts and Christian spirit of the dominant, that is, 
 the stronger race. 
 
 It is the same with that other fundamental principle with 
 which the name of Lexington is, from the historical point of 
 view, so closely associated, — I refer, of course, to the revolu- 
 tionary contention that representation is a necessary adjunct to 
 taxation. This principle also, it is frankly argued, we have 
 outgrown, in presence of our new responsibilities ; and, as be- 
 tween the superior and inferior races, it is subject to obvious 
 limitations. Here again, as between the policy of the " Open 
 Door " and the Closed-Colonial-Market policy, the superior race 
 is amenable to its own conscience only. It will doubtless on 
 all suitable and convenient occasions bear in mind that it is a 
 " Trustee for Civilization." 
 
 Charles Francis Adams, Imperialism and the Tracks of Our Forefathers. 
 (Address delivered at Lexington, December 30, 1898.) 18. 
 
 RANDOLPH (1898) 
 
 The peace of Cuba will be our first concern, but we must not 
 set up an unattainable standard of order for the Cubans, and 
 then annex their island on the plea that they cannot govern it. 
 Cuba may wait long for the order which we prescribe for our- 
 selves, and indeed the peace of a Spanish- American state of the 
 best type is not the peace of the United States. 
 
 The early installation of a Cuban government is desirable not 
 only for the sake of the Cubans but because pending this event 
 the United States must undertake the provisional control of the 
 island. The undertaking will be sufficiently vexatious, even 
 assuming, as I do, that it will be confided to trained soldiers 
 
404 COLONIES AND DEPENDENCIES [Ch. XXIV 
 
 and not to uniformed politicians. Yet it will be better to pro- 
 long our control than to recognize prematurely a Cuban gov- 
 ernment. When the authority of Spain shall disappear, the 
 authority of the United States must replace it and prevail until 
 a responsible local government shall be ready to assume control. 
 The government of Cuba, which shall be definitely recognized 
 by the United States, and may thereafter claim recognition 
 from other nations, must be organized or ratified by the people 
 of Cuba freely deliberating and acting under the protection of 
 our impartial authority. Although the United States will not 
 assume to present Cuba with a plan of government, they should 
 condition recognition upon the adoption of a plan which shall 
 establish a new nation upon principles of justice. 
 
 Carman F. Randolph, Notes on the Foreign Policy of the United States. 
 6-7. 
 
 W. G. SUMNER (1899) 
 
 War, expansion, and imperialism are questions of statesman- 
 ship and of nothing else. I disregard all other aspects of them, 
 and all extraneous elements which have been intermingled with 
 them. I received the other day a circular of a new educational 
 enterprise in which it was urged that, on account of our new 
 possessions, w^e ought now to devote especial study to history, 
 political econom}^ and what is called political science. I asked 
 myself, why? What more reason is there for pursuing these 
 studies now on behalf of our dependencies than there was be- 
 fore to pursue them on behalf of ourselves? In our proceed- 
 ings of 1898, we made no use of whatever knowledge we had 
 of any of these lines of study. The original and prime cause 
 of the war was that it was a move of partisan tactics in the 
 strife of parties at Washington. As soon as it seemed resolved 
 upon, a number of interests began to see their advantage in it, 
 and hastened to further it. It was necessary to make appeals 
 to the public which would bring quite other motives to the sup- 
 port of the enterprise, and win the consent of classes who would 
 never consent to either financial or political jobbery. Such 
 appeals were found in sensational assertions which we had no 
 means to verify, in phrases of alleged patriotism, in statements 
 about Cuba and the Cubans which we now know to have been 
 entirely untrue. 
 
1898-1899] CRITICAL COMMENT 405 
 
 Where was the statesmanship of all this? If it is not an 
 established rule of statecraft that a statesman should never 
 impose any sacrifices on his people for anything but their own 
 interests, then it is useless to study political philosophy any 
 more, for this is the alphabet of it. It is contrary to honest 
 statesmanship to imperil the political welfare of the state for 
 party interests. It was unstatesmanlike to publish a solemn 
 declaration that we would not seize any territory, and especially 
 to characterize such action in advance as " criminal aggression," 
 for it was morally certain that we should come out of any war 
 with Spain with conquered territory on our hands, and the peo- 
 ple who wanted the war, or who consented to it, hoped that we 
 would do so. 
 
 We talk about " liberty " all the time in a glib and easy way, 
 as if liberty was a thing that men could have if they want it, 
 and to any extent to which they want it. It is certain that a 
 very large part of human liberty consists simply in the choice 
 either to do a thing or to let it alone. If we decide to do it, a 
 whole series of consequences is entailed upon us in regard to 
 which it is exceedingly difficult, or impossible, for us to exer- 
 cise any liberty at all. The proof of this from the case before 
 us is so clear and easy that I need spend no words upon it. 
 Here, then, you have the reason why it is a rule of sound 
 statesmanship not to embark on an adventurous policj'. A 
 statesman could not be expected to know in advance that we 
 should come out of the war with the Philippines on our hands, 
 but it belongs to his education to warn him that a policj^ of 
 adventure and of gratuitous enterprise would be sure to entail 
 embarrassments of some kind. What comes to us in the evolu- 
 tion of our own life and interests, that we must meet ; what we 
 go to seek which lies beyond that domain, is a waste of our en- 
 ergy and a compromise of our liberty and welfare. If this is 
 not sound doctrine, then the historical and social sciences have 
 nothing to teach us which is worth any trouble. . . . 
 
 We assume that what we like and practise, and what we 
 think better, must come as a welcome blessing to Spanish- 
 Americans and Filipinos. This is grossly and obviously 
 untrue. They hate our ways. They are hostile to our ideas. 
 Our religion, language, institutions, and manners offend them. 
 
406 COLONIES AND DEPENDENCIES [Ch. XXIV 
 
 They like their own ways, and if we appear amongst them as 
 rulers, there will be social discord on all the great departments 
 of social interest. The most important thing which we shall 
 inherit from the Spaniards will be the task of suppressing re- 
 bellions. If the United States takes out of the hands of Spain 
 her mission, on the ground that Spain is not executing it well, 
 and if this nation, in its turn, attempts to be school-mistress to 
 others, it will shrivel up into the same vanity and self-conceit 
 of which Spain now presents an example. To read our current 
 literature one would think that we were already well on the way 
 to it. Now, the great reason why all these enterprises, which 
 begin by saying to somebody else : We know what is good for 
 you, better than you know j^ourself, and we are going to make 
 you do it — are false and wrong, is that they violate liberty ; 
 or, to turn the same statement into other words : the reason 
 why liberty, of which we Americans talk so much, is a good 
 thing, is, that it means leaving people to live out their own 
 lives in their own way, while we do the same. If we believe in 
 liberty, as an American principle, why do we not stand by it? 
 Why are we going to throw it away to enter upon a Spanish 
 policy of dominion and regulation? 
 
 William G. Sumner, The Conquest of the United States hy Spain. 
 SCHURZ (1899) 
 
 If ever, it behooves the American people to think and act 
 with calm deliberation, for the character and future of the re- 
 public and the welfare of its people now living and yet to be 
 born are in unprecedented jeopardy. To form a candid judg- 
 ment of what this republic has been, what it may become, and 
 what it ought to be, let us first recall to our minds its condition 
 before the recent Spanish War. 
 
 Our government was, in the words of Abraham Lincoln, "the 
 government of the people, by the people, and for the people." 
 It was the noblest ambition of all true Americans to carry this 
 democratic government to the highest degree of perfection in 
 justice, in probity, in assured peace, in the security of human 
 rights, in progressive civilization ; to solve the problem of pop- 
 
1899] CRITICAL COMMENT 407 
 
 ular self-government on the grandest scale, and thus to make 
 this republic the example and guiding star of mankind. 
 
 We had invited the oppressed of all nations to find shelter 
 here, and to enjoy with us the blessings of free institutions. 
 They came by the millions. Some were not so welcome as 
 others, but under the assimilating force of American life in 
 our temperate climate, which stimulates the working energies, 
 nurses the spirit of orderly freedom, and thus favors the growth 
 of democracies, they become good Americans, most in the first, 
 all in the following generations. And so with all the blood- 
 crossings caused by the motley immigration, we became a sub- 
 stantially homogeneous people, united by common political 
 beliefs and ideals, by common interests, laws, and aspira- 
 tions, — in one word, a nation. . . . 
 
 Then came the Spanish War. A few vigorous blows laid the 
 feeble enemy helpless at our feet. The whole scene seemed to 
 have suddenly changed. According to the solemn proclamation 
 of our government, the war had been undertaken solely for the 
 liberation of Cuba, as a war of humanity and not of conquest. 
 But our easy victories had put conquest within our reach, and 
 when our arms occupied foreign territory, a loud demand arose 
 that, pledge or no pledge to the contrary, the conquests should 
 be kept, even the Philippines on the other side of the globe, 
 and that as to Cuba herself, independence would only be a pro- 
 visional formality. Why not? was the cry. Has not the career 
 of the republic almost from its very beginning been one of ter- 
 ritorial expansion? Has it not acquired Louisiana, Florida, 
 Texas, the vast countries that came to us through the Mexican 
 War, and Alaska, and has it not digested them well? Were not 
 those acquisitions much larger than those now in contempla- 
 tion? If the republic could digest the old, why not the new? 
 What is the difference? . . . 
 
 . . . This difference called forth that great psean of human 
 liberty, the American Declaration of Independence, — a docu- 
 ment which, I regret to say, seems, owing to the intoxication of 
 conquest, to have lost much of its charm among some of our 
 fellow citizens. Its fundamental principle was that " govern- 
 ments derive their just powers from the consent of the gov- 
 erned." We are now told that we have never fully lived up to 
 
408 COLONIES AND DEPENDENCIES [Ch. XXIV 
 
 that principle, aud that, therefore, in our new policy we may 
 cast it aside altogether. But I say to you that, if we are true 
 believers in democratic government, it is our duty to move in 
 the direction toward the full realization of that principle, and 
 not in the direction away from it. If you tell me that we can- 
 not govern the people of those new possessions in accordance 
 with that principle, then I answer that this is a good reason why 
 this democracy should not attempt to govern them at all. 
 
 If we do, we shall transform the government of the people, 
 for the people, and by the people, for which Abraham Lincoln 
 lived, into a government of one part of the people, the strong, 
 over another part, the weak. Such an abandonment of a fun- 
 damental principle as a permanent policy may at first seem to 
 bear only upon more or less distant dependencies, but it can 
 hardly fail in its ultimate effects to disturb the rule of the same 
 principle in the conduct of democratic government at home. 
 Aud 1 warn the American people that a democracy cannot so 
 deny its faith as to the vital conditions of its being, it cannot 
 long play the king over subject populations, without creating 
 within itself ways of thinking and habits of action most dan- 
 gerous to its own vitality, — most dangerous especially to those 
 classes of society which are the least powerful in the assertion, 
 and the most helpless in the defence of their rights. Let the 
 poor and the men Avho earn their bread by the labor of their 
 hands pause and consider well before they give their assent to 
 a policy so deliberately forgetful of the equality of rights. 
 
 Carl Schtjez, American Imperialism. (Address before the University of 
 Chicago, January 4, 1899.) 9-11. 
 
 HOAR (1899) 
 
 The question is this : Have we the right, as doubtless we 
 have the physical power, to enter upon the government of ten 
 or twelve million subject people without constitutional restraint? 
 Of that question the Senator from Connecticut takes the affirm- 
 ative. And upon that question I desire to join issue. 
 
 Mr. President, I am no strict constructionist. I am no 
 alarmist. I believe this country to be a nation, a sovereign 
 nation. I believe Congress to possess all the powers which are 
 
1899] CRITICAL COMMENT 409 
 
 necessary to accomplish under the most generous and liberal 
 construction the great objects which the men who framed the 
 Constitution and the people who adopted it desired to accom- 
 plish by its instrumentality. I was bred, I might almost say I 
 was born, in the faith, which I inherited from the men whose 
 blood is in my veins, of the party of Hamilton and Washington 
 and Webster and Sumner, and not in that of Madison or Cal- 
 houn or the strict constructionists. The men by whose hands 
 Connecticut signed the Declaration of Independence, who in 
 her behalf helped frame the Constitution, who represented her 
 in either House of Congress in the great Administrations of 
 Washington and John Adams, were of that way of thinking. 
 But the man of them most thoroughgoing and extreme, Ham- 
 ilton himself, Ellsworth himself, Adams himself, would have 
 looked with amazement if not with horror upon the doctrines 
 asserted by the honorable Senator from Connecticut to-day. 
 I am not speaking only of his denial of the great doctrine 
 of constitutional liberty and of political morality that gov- 
 ernment derives its just power from the consent of the gov- 
 erned, and that any people has the right, when it thinks its 
 existing government is destructive of the great ends of life, 
 liberty, and happiness, to throw off the old government and 
 make a new one for itself, and certainly if it have that right no 
 other man has the right to impose one on it against its consent. 
 But I am not speaking of that. I am speaking of his aston- 
 ishing and most extravagant construction of the powers of 
 Congress under the Constitution. . » . 
 
 Now, let us trace for a moment the history of this beautiful, 
 august, pure, invincible sovereign of ours. The idea that our 
 fathers intended to clothe it with such a sovereignty is as re- 
 pugnant to me as the idea that because God created a seraph, 
 or an archangel, or even a man in his own image, he intended 
 that he should be at liberty commit murder or robbery or any 
 form of bestiality because he had clothed him with the physical 
 power to accomplish it. 
 
 Expositio contemporanea niaxime valet. The great contem- 
 poraneous exposition of the Constitution is to be found in the 
 Declaration of Independence. Over every clause, syllable, 
 and letter of the Constitution the Declaration of IndependencQ 
 
410 COLONIES AND DEPENDENCIES [Ch. XXIV 
 
 pours its blazing torchlight. The same men framed it. The 
 same States confirmed it. The same people pledged their lives, 
 their fortunes, and their sacred honor to support it. The great 
 characters in the constitutional convention were the great char- 
 acters of the Continental Congress. There are undoubtedly, 
 among its burning and shining truths, one or two which the 
 convention that adopted it were not prepared themselves at 
 once to put into practice. But they placed them before their 
 countrymen as an ideal moral law to which the liberty of the 
 people was to aspire and to ascend as soon as the nature of 
 existing conditions would admit. Doubtless slavery was in- 
 consistent with it, as Jefferson, its great author, has in more 
 than one place left on record. But at last in the strife of a 
 great civil war the truth of the Declaration prevailed and the 
 falsehood of slavery went down, and at last the Constitution of 
 the United States conformed to the Declaration and it has be- 
 come the law of the land, and its great doctrines of liberty are 
 written upon the American flag wherever the American flag 
 floats. Who shall haul them down? . . . 
 
 When the delegates of the Old Thirteen set their hands to 
 that Declaration, the people of the United States stepped 
 forth armed in its invincible panoply, like Minerva from the 
 head of Jove, the greatest world power the world had ever 
 seen. The seed they planted on that July morning grew up 
 into crowns and sceptres. Whenever we depart from it the 
 world power of the Great Republic is at an end. . . . 
 
 At the close of the nineteenth century the American Republic, 
 after its example in abolishing slavery has spread through the 
 world, is asked by the Senator from Connecticut to adopt a 
 doctrine of constitutional expansion on the principle that it is 
 right to conquer, buy, and subject a whole nation if we happen 
 to deem it for their good, — for their good as we conceive it, 
 and not as they conceive it. 
 
 Mr. President, Abraham Lincoln said, " No man was ever 
 created good enough to own another." No nation was ever 
 created good enough to own another. 
 
 No single American workman, no humble American home, 
 will ever be better or happier for the constitutional doctrine 
 
1898-1900] CRITICAL COMMENT 411 
 
 which the Senator from Connecticut proclaims. If it be adopted 
 here not only the workman's Avages will be diminished, not only 
 will the burden of taxation be increased, not only, like the 
 peasant of Europe, will he be born with a heavy debt about 
 his neck and will stagger with an armed soldier upon his back, 
 but his dignity will be dishonored and his manhood discrowned 
 by the act of his own Government. 
 
 George F. Hoar, No Constitutional Power to conquer Foreign Nations and 
 hold their People in Subjection against their Will. (Speech in the Senate, 
 January 9, 1899.) 11-40. 
 
 BURGESS (1899) 
 
 I cannot but regard as sophistical the argument for taking 
 the Philippine Islands that is drawn from the fact of our hav- 
 ing taken Louisiana, Florida, Texas, California, New Mexico, 
 Oregon and even Alaska. All of these districts, except per- 
 haps Alaska, are geographically natural parts of the United 
 States. They were necessary to the national development of 
 the United States. Their continued possession by other pow- 
 ers would have been a direct danger to the interests, if not to 
 existence, of the United States. This latter proposition ap- 
 plies also, in some degree, to Alaska. The argument drawn 
 from our past expansion would be more sound if it were used 
 in reference to Cuba. Cuba commands the entrances to the 
 Gulf of Mexico and the approaches from the sea to the south- 
 ern boundary of the United States. The possession of this 
 island by the United States may become — is even likely to 
 become — a national necessity. But the Philippine Islands 
 stand in no such relation to us. The principle of expansion 
 which we have heretofore followed is national expansion. The 
 expansion involved in the occupation of the Philippines is 
 world-empire expansion. These are not the same thing ; and 
 while successful world-empire expansion may require a pre- 
 ceding national expansion, a successful national expansion 
 does not require world-empire expansion. In a word, the steps 
 in national expansion are not precedents for world-empire 
 expansion. 
 
 John W. Burgess, S'ow may the United States govern its Extra- Continental 
 Territory ? in Political Science Quarterly, XIV. 2-3 (March, 1899), 
 
412 COLONIES AND DEPENDENCIES [Ch. XXIV 
 
 HART (1900) 
 
 At the end of the Revolution the United States had a most 
 excellent opportunity to remain within the former limits of the 
 thirteen colonies, for in the peace negotiations of 1782 and 
 1783 it was the distinct purpose of France and Spain, and at 
 times of England, to make the water-shed of the Appalachian 
 chain practically the western boundary. . . . 
 
 Three different areas, adjacent to the original English col- 
 onies, were to be disposed of in the negotiations. First, some 
 of the Americans doubted whether ' ' we could ever have a 
 real peace, with Canada or Nova Scotia in the hands of the 
 English." The second region was the northwest territory, in 
 which the Americans had the right of occupation by conquest 
 in a considerable part of the posts. The third area was the 
 territory south of the Ohio River, most of which had not been 
 under the jurisdiction of any English colony prior to the 
 Revolution. 
 
 The three arch-expansionists of that period, Franklin, Jay, 
 and Adams, without much difficulty secured English consent to 
 making the Mississippi the western boundary,- as required by 
 the instruction of Congress of 1779. . . . 
 
 Having thus inaugurated the policy of territorial expan- 
 sion, our forefathers next set themselves to the great task 
 of furnishing a colonial government, and during the ten years 
 from 1780 to 1790 this was one of the chief concerns of 
 Congress. . . . 
 
 The framers of the Constitution perfectly understood that 
 the power which they gave Congress to make war included the 
 power to conquer territory, and that the power to make treaties 
 included the authority to annex by peaceful concession. . . . 
 
 During the first decade under the Federal Constitution the 
 nation did not yet know its own strength, or venture to predict 
 its own future. . . . 
 
 The geographical and political conditions of the time speedily 
 revived the spirit of political extension. Americans could put 
 up with the exclusion from the lower Mississippi and the Gulf 
 so long as that territory was in the hands of weak and declin- 
 ing Spain. European wars and treaties now began, however, 
 
1900] CRITICAL COMMENT 413 
 
 to have far-reaching effects, extending to the New "World, 
 for in 1795 and 1796 the French government began to urge 
 upon Spain the transfer of the former French province of 
 Louisiana. . . . 
 
 People speak of the "Louisiana negotiations" as though 
 there had been two sides and a balancing of propositions. In 
 reality the province was thrown to the United States, as the 
 Caliph Harun-al-Raschid might have given a palace to a poor 
 merchant who had admired the portico. . . . 
 
 So evident were the practical advantages of annexing 
 Louisiana that much of the anti-annexation argument was 
 directed against the future creation of a new State, from 
 which would come senators and representatives. . . . 
 
 The favorite objection was the distance of the new terri- 
 tory. . . . 
 
 Another objection was the cost of the territory. . . . 
 
 To sum up the objections to the treaty : France had no 
 right to cede it ; the United States had no right to receive it, 
 under the conditions of the treat}^ ; it was not worth having on 
 any terms ; it was vast ; it would disturb the balance of the 
 Union ; it would draw valued inhabitants from other parts of 
 the United States ; it would poison the settlers ; the treaty was 
 an extra-constitutional proceeding ; the President and Senate 
 did not represent the opinion of the country ; and patriotic 
 men ought to oppose " such a pernicious measure as the admis- 
 sion of Louisiana, of a world, and such a world, into our 
 Union." . . . 
 
 While members of Congress, as well as people outside, 
 were discussing the question of Louisiana, Jefferson had al- 
 ready dispatched Lewis and Clarke to explore the upper Mis- 
 souri and find a practicable road across to the Pacific ; but 
 though bold to enlarge his country, he still had constitutional 
 qualms, which were not removed by the Senate vote of 24 to 
 7 ratifying the treaty, nor by the House vote of 90 to 25 grant- 
 ing the necessary appropriation. Jefferson drew up a constitu- 
 tional amendment intended to be an indemnity for him, and to 
 define the principles of annexation for later times ; but his own 
 friends laughed at the idea, and from that day to this the terri- 
 tory has remained a part of the United States, with no further 
 constitutional controversies. 
 
414 COLONIES AND DEPENDENCIES [Ch. XXIV 
 
 If this study were carried farther forward, the same evident, 
 hearty, and unappeasable Anglo-Saxon land-hunger would be 
 found appearing in the War of 1812, in the boundary contro- 
 versies with Great Britain, in the annexations of Texas and 
 California. Whether that was a right and wholesome hunger 
 must be determined from the last fifty years of national his- 
 tory. But wise or unwise, far-seeing or haphazard, consecutive 
 or accidental, good or evil, the policy of our forefathers was a 
 policy of territorial extension, and they met and supposed 
 they had surmounted most of the problems which have now 
 returned to vex American public men, and to give concern 
 to those who love their country. 
 
 Albert Bushnell Hakt, Territorial Problems, in Harper's Monthly, 
 Vol. I. pp. 312-320 passim (January, 1900). 
 
 ABBOTT (1900) 
 
 We have believed and we still believe that the war against 
 Spain was a most just and necessary war ; that on it we had a 
 right to invoke " the considerate judgment of mankind and the 
 gracious favor of Almighty God," and that by both it has been 
 sanctioned ; that if by his providence God has ever signified 
 his approval of war, he did so by the unparalleled successes of 
 our navy at Manila and Santiago ; that if ever war received 
 popular approval from the common people hostile to hierarchi- 
 cal and oligarchic oppression, our war against Spain has had 
 such approval from the common people of other lands. And 
 while the issue in the Philippines is not equally clear, because it 
 is possible that statesmanship could have avoided war with the 
 Filipinos, yet we have believed and still believe that it was our 
 duty to save, by diplomacy if possible, by war if necessary, 
 those islands from the anarchy in which the pseudo-government 
 of the Aguinaldo oligarchy would inevitably have involved 
 them. 
 
 The war with a self-seeking oligarchy in Spain and the war 
 with a self-seeking oligarchy in the Philippines is over, and 
 now there commences a war with the same spirit of self-seeking 
 at home. We are glad that the American flag floats over Puerto 
 Rico and over the Philippines ; and we believe that the Amer- 
 
1900] CRITICAL COMMENT 415 
 
 lean flag will carry to those lands which it covers the same 
 blessings which it has carried in successive eras of expansion 
 to new American territory on this continent. But it is clear 
 that this result and their prosperity and our National honor 
 are threatened by short-sighted politicians and greedy traders, 
 and that those who are expansionists but not imperialists must 
 join hands in a vigorous and determined appeal to the Amer- 
 ican people to secure the welfare of our dependencies and pre- 
 serve the honor of our Nation. And it seems to us that those 
 who have not been expansionists might well join those who are 
 expansionists but are not imperialists upon this new issue now 
 presented. 
 
 In determining our duty toward our dependencies the Nation 
 is bound neither by the specific provisions of its written Consti- 
 tution defining the rights of States and Territories, nor by the 
 specific counsels and the unwritten traditions of the past. It is 
 not bound by the first, because Puerto Rico and the Philippines 
 are neither States nor Tei'ritories, and have not the specific 
 rights which the written Constitution gives to States and Ter- 
 ritories. It is not bound by the second, because counsels given 
 and traditions created in one epoch and applicable to one state 
 of circumstances are not bonds to bind the Nation in another 
 epoch and under different circumstances. . . . 
 
 But we are bound by those general principles of justice and 
 humanity which are equally applicable to all epochs and in all 
 circumstances, and we must preserve in our new conditions 
 that spirit which constitutes what we may call the personality 
 of the Nation, the loss of which would involve the real death 
 of the Nation. The eternal principle of justice w^hich must 
 control us is that governments exist for the benefit of the gov- 
 erned ; the American spirit which must control us is that the 
 ideal form of government is self-government. . . . The self- 
 government of a community rests on the capacity of the indi- 
 viduals in the community to govern themselves ; if there is no 
 such capacity in the individuals, there will be no such capacity 
 in the community. That capacity may be developed by long 
 centuries of training, as in the Anglo-Saxon race ; it may be 
 developed by contiguity and companionship with meii who 
 already possess such capacity, as in the case of our own immi- 
 
416 COLONIES AND DEPENDENCIES [Ch. XXIV 
 
 grant populations. But to assume that it is possessed by a 
 people without training, and to leave them to exercise it with- 
 out supervision, counsel, or control, would be a blunder only 
 comparable to that of a father who should affirm that all chil- 
 dren have a dormant capacity for self-support, and therefore 
 the new-born babe may be left to take care of himself. Moses 
 required a princess mother, and even Romulus and Remus 
 would have starved but for the tender mercies of a she-wolf. 
 
 But, although self-government cannot be assumed as the 
 starting-point for Puerto Rico or the Philippines, it must be 
 kept constantly in view as the goal. American institutions 
 are built on self-government. In this respect America is more 
 democratic than England. In England the political powers of 
 the county and the town are derived from the central Parlia- 
 ment ; in America the powers of Congress are derived from the 
 States. The source of authority in the one nation is a central 
 fountain, in the other it is many local springs. Our object in 
 Puerto Rico and the Philippines must be to develop a local 
 self-government in town and county, and from this build up a 
 self-government for the entire community, and out of this self- 
 government must grow the final relations between that self- 
 governing community and the Nation. The ultimate relation 
 must be either that of a State to the Nation, or that of an in- 
 dependent self-governing colony to a mother-land ; it must not 
 be that of a Roman province to a central imperial authority. 
 The latter would be imperialism, and it would not be ex- 
 pansion. 
 
 Meanwhile, and as a first step in this process, we must gov- 
 ern our dependencies with unselfish justice and equit3^ For 
 there is only one w'ay of passing from anarchy to self-govern- 
 ment — namely, through government from without. 
 
 Lyman Abbott, Expamion, but not Imperialism, in The Outlook, LXIV. 
 662-663 (March 24, 1900). 
 
 LODGE (1900) 
 
 The capacity of a people, moreover, for free and representa- 
 tive government is not in the least a matter of guesswork. The 
 forms of government to which nations or races naturally tend 
 may easily be discovered from history. You can follow the 
 
1900] CRITICAL COMMENT 417 
 
 story of political freedom aud representative government among 
 the English-speaking people back across the centuries until you 
 reach the Teutonic tribes emerging from the forests of Germany 
 and bringing with them forms of local self-government which 
 are repeated to-day in the pure democracies of the New Eng- 
 land town meeting. The tendencies and instincts of the Teu- 
 tonic race which, reaching from the Arctic Circle to the Alps, 
 swept down upon the Eoman Empire, were clear at the outset. 
 Yet the individual freedom and the highly developed forms of 
 free government in which these tendencies and instincts have 
 culminated in certain countries and under the most favorable 
 conditions have been the slow growth of nearly fifteen hundred 
 years. 
 
 There never has been, on the other hand, the slightest indi- 
 cation of any desire for what we call freedom or representative 
 government east of Constantinople. The battle of Marathon 
 was but the struggle between a race which had the instinct and 
 desire for freedom and the opposite principle. The form of 
 government natural to the Asiatic has always been a despot- 
 ism. You may search the history of Asia and of the East for 
 the slightest trace, not merely of any understanding, but of any 
 desire for political liberty, as we understand the word. In the 
 village communities of India, in the Mura of Japan, in the 
 towns and villages of China you can find forms of local self- 
 government which are as successful as they ai'e ancient. The 
 Malays of Java and of the Philippines as well display the same 
 capacity, and on this old and deep-rooted practice the self- 
 government of provinces and states can, under proper auspices, 
 be built up. It is just here that our work ought to begin. But 
 this local self-government never went bej^ond the town or the 
 village ; it never grew and spread, as was the case with the 
 Teutonic tribes and their descendants. The only central, state 
 or national governments which the Eastern and Asiatic people 
 have formed or set up have been invariably despotisms. . , . 
 
 You cannot change race tendencies in a moment. Habits of 
 thought slowly formed through long periods of time and based 
 on physical, climatic, and geographical peculiarities are more 
 indestructible than the pyramids themselves. Only by very 
 slow processes can they be modified or changed. . . . 
 
 27 
 
418 COLONIES AND DEPENDENCIES [Ch. XXIV 
 
 The problem we have before us is to give to people who 
 have no conception of free government, as we understand it 
 and carry it on, the opportunity to learn that lesson. What 
 better proof could there be of their present unfitness for self- 
 government than their senseless attacks upon us before any- 
 thing had been done? Could anything demonstrate more fully 
 the need of time and opportunity to learn the principles of self- 
 government than this assault upon liberators and friends at the 
 bidding of a self-seeking, self-appointed, unscrupulous auto- 
 crat and dictator? Some of the inhabitants of the Philippines, 
 who have had the benefit of Christianity and of a measure of 
 education, will, I have no doubt, under our fostering care and 
 with peace and order, assume at once a degree of self-govern- 
 ment and advance constantly, with our aid, toward a still larger 
 exercise of that inestimable privilege, but to abandon those 
 islands is to leave them to anarchy, to short-lived military dic- 
 tatorships, to the struggle of factions, and, in a very brief time, 
 to their seizure by some great Western power who will not be 
 at all desirous to train them in the principles of freedom, as we 
 are, but who will take them because the world is no longer 
 large enough to permit some of its most valuable portions to 
 lie barren and ruined, the miserable results of foolish political 
 experiments. . . . 
 
 From the dispatch of May 26 onward the attitude of our 
 Government was clear and unmistakable. But every real hope, 
 every proper promise, was freely offered and never violated. 
 There are many duties imposed upon a President in which it is 
 easy to imagine a personal or selfish motive, in which such 
 motives might exist even if they do not. But here even the 
 most malignant must be at a loss to find the existence of a bad 
 motive possible. 
 
 Suddenly at the end of the Spanish war we were confronted 
 with the question of what should be done with the Philippines. 
 Their fate was in our hands. We were all able to discuss them 
 and to speculate as to what that fate should be. No responsi- 
 bility rested upon us. But one man had to act. While the 
 rest of the world was talking he had to be doing. The iron 
 hand of necessity was upon his shoulder, and upon his alone. 
 Act he must. No man in that hiarh office seeks new burdens 
 
1900] CRITICAL COMMENT 410 
 
 and fresh responsibilities or longs to enter on new policies with 
 the unforeseen dangers which lie thick along untried paths. 
 Every selfish motive, every personal interest, cried out against 
 it. Every selfish motive, every personal interest, urged the 
 President to let the Philippines go, and, like Gallio, to care for 
 none of these things. It was so easy to pass by on the other 
 side. But he faced the new conditions which surged up around 
 him. When others then knew little he knew much. Thus he 
 came to see what duty demanded, duty to ourselves and to 
 others. Thus he came to see what the interests of the Ameri- 
 can people required. Guided by this sense of duty, by the 
 spirit of the American people in the past, by a wise statesman- 
 ship, which looked deeply into the future, he boldly took the 
 islands. Since this great decision his policy has been firm and 
 consistent. He has sought only what was best for the people 
 of those islands and for his own people. 
 
 The policy we offer, on the other hand, is simple and straight- 
 forward. We believe in the frank acceptance of existing facts, 
 and in dealing with them as they are and not on a theory of 
 what they might or ought to be. We accept the fact that the 
 Philippine Islands are ours to-day and that we are responsible 
 for them before the world. The next fact is that there is a war 
 in those islands, which, with its chief in hiding, and no sem- 
 blance of a government, has now degenerated into mere guerilla 
 fighting and brigandage, with a precarious existence predicated 
 on the November elections. Our immediate duty, therefore, 
 is to suppress this disorder, put an end to fighting, and restore 
 peace and order. That is what we are doing. That is all 
 we are called upon to do in order to meet the demands of the 
 living present. Beyond this we ought not to go by a legislative 
 act, except to make such provision that there may be no delay 
 in re-establishing civil government when the war ends. The 
 question of our constitutional right and power to govern those 
 islands in any way we please I shall not discuss. Not only is 
 it still in the future, but if authority is lacking, the Constitution 
 can be amended. Personally, I have no doubt that our Con- 
 stitution gives full right and authority to hold and govern the 
 Philippines without making them either economically or politi- 
 cally part of our system, neither of which they should ever be. 
 
420 COLONIES AND DEPENDENCIES [Ch. XXIV 
 
 When our great Chief Justice, John Marshall — ' ' clarum et 
 venerabile nomen " — declared in the Cherokee case that the 
 United States could have under its control, exercised by treaty 
 or the laws of Congress, a "domestic and dependent nation," I 
 think he solved the question of our constitutional relations to the 
 Philippines. Further than the acts and the policy which I have 
 just stated, I can only give my own opinion and belief as to the 
 future, and as to the course to be pursued in the Philippines. 
 I hope and believe that we shall retain the islands, and tliat, 
 peace and order once restored, we shall and should re-establish 
 civil government, beginning with the towns and villages, where 
 the inhabitants are able to manage their own affairs. We 
 should give them honest administration, and prompt and 
 efficient courts. We should see to it that there is entire 
 protection to persons and property, in order to encourage 
 the development of the islands by the assurance of safety to 
 investors of capital. All men should be protected in the free 
 exercise of their religion, and the doors thrown open to mission- 
 aries of all Christian sects. The land, which belongs to the 
 people, and of which they have been robbed in the past, should 
 be returned to them and their titles made secure. We should 
 inaugurate and carry forward, in the most earnest and liberal 
 way, a comprehensive system of popular education. Finallv, 
 while we bring prosperity to the islands by developing their 
 resources, we should, as rapidly as conditions will permit, be- 
 stow upon them self-government and home rule. Such, in out- 
 line, is the policy which I believe can be and will be pursued 
 towards the Philippines. It will require time, patience, honesty, 
 and ability for its completion, but it is thoroughly practicable 
 and reasonable. . . . 
 
 I do not think the Filipinos are fit for self-government as we 
 understand it, and I am certain that if we left them alone the 
 result would be disastrous to them and discreditable to us. Left 
 to themselves the islands, if history, facts, and experience teach 
 anything, would sink into a great group of Haitis and St. Do- 
 mingos, with this important difference, that there would be no 
 Monroe doctrine to prevent other nations from interfering to 
 put an end to the ruin of the people and the conversion of a fair 
 land into a useless and unproductive waste. The nations of 
 
189S-1900] CRITICAL COMMENT 421 
 
 Europe are not going to stand idly by and see the islands of the 
 Philippines given over to anarchy and dictatorships of the Hai- 
 tian type, while their waters swarm again with pirates whom 
 Spain suppressed, and whom we have now the responsibility of 
 keeping down and extinguishing. We have no right to give 
 those islands over to anarchy, tyrannies, and piracy, and I hope 
 we have too much self-respect to hand them over to European 
 powers with the confession that they can restore peace and 
 order more kindly and justly than we, and lead the inhabitants 
 onward to a larger liberty and a more complete self-government 
 than we can bestow upon them. Therefoi*e, Mr. President, I 
 desire to show why I feel so confident that the Filipinos are not 
 now fit for self-government, and that their only hope of reach- 
 ing the freedom, self-government, and civilization which we 
 desire them to have lies in our now holding, governing, and 
 controlling the islands. 
 
 Henry Cabot Lodge, The Retention of the Philippine Islands. (Speech in 
 the Senate, March 7, 1900.) 14-35 passim. 
 
 GIDDINGS (1900) 
 
 Never since the Constitution was ratified by the thirteen 
 original commonwealths have the American people, as a whole, 
 felt so confident of their place among the nations, or so sure of 
 the excellence of their polity, and of the vitality of their laws 
 and immunities. Never have they been so profoundly con- 
 vinced that their greatest work for civilization lies not in the 
 past, but in the future. They stand at the beginning of the 
 twentieth century, in their own minds fully assured that the re- 
 sponsibilities which they are about to face, and that the achieve- 
 ments which they expect to complete, are immeasurably greater 
 than are those which have crowned the century of their experi- 
 ment and discipline. 
 
 From the Louisiana purchase to the annexation of Hawaii 
 we have seized, with unhesitating promptness, every opportunity 
 to broaden our national domain, and to extend our institutions 
 to annexed populations. Even more convincingly has our vig- 
 our been shown in the fearlessness with which the cost of every 
 new responsibility has been met. Whether this cost has been. 
 
422 COLONIES AND DEPENDENCIES [Ch. XXIV 
 
 paid in treasure or in blood, the American people lias met it 
 without one moment's hesitation. . . . 
 
 . . Next to vitality, and supplementing it, the basis of faith 
 in the future is a sound, full knowledge of the present and the 
 past. The American people know facts about their own num- 
 bers, resources, and activities, which fully justify their belief 
 that they are at the beginning, not approaching the end, of 
 their evolution as a civilized nation. Only in a few spots within 
 our national domain does the density of population yet approach 
 the average density of the older European countries. . . . 
 
 Into this domain the population of Europe continues to dis- 
 charge its overflow ; and the stream of immigration shows no 
 marked decrease save in the exceptional years of industrial 
 depression. Of chief significance, however, is the fact that the 
 greater part of all the immigration that we have thus far re- 
 ceived has consisted of the same nationalities from whose 
 amalgamation the original American stock was produced. . . . 
 
 When we remember that it was the crossing of the Germanic 
 and the Celtic stocks that produced the English race itself, we 
 are obliged to assume that the future American people will be 
 substantially the same human stuff that created the English 
 common law, founded the Parliamentary institutions, estab- 
 lished American self-government, and framed the Constitution 
 of the United States. 
 
 Fhanklin H. Giddings, Democracy and Empire. 295-297. 
 
APPENDIX A 
 
 ESSENTIALS IN ENGLISH CONSTITUTIONAL 
 HISTORY 
 
 This analysis of English historj' has been tested by actual class use, and is 
 adapted for the documents which form the body of the work. The titles of the 
 documents are distinguished in the Essentials by appearing in italics. 
 
 § 1. Essentials in Early Teu- 
 tonic Life. — 2000 B. C.-449 
 
 A. D. 
 
 1. Geographical environment. 
 
 Eifect : Eacial characteristics. 
 
 2. Nomadic tribes of Aryan 
 
 family. 
 Effect : Tribal settlements 
 formed gradually. 
 
 3. Leadership of divisions. 
 
 Effect : Beginning of local 
 government. 
 
 4. Spirit engendered by " tun- 
 
 mote." 
 Effect : Germ of free citizen- 
 ship. 
 
 5. Development of the Witanage- 
 
 mot. 
 Effect : Government by the 
 " freemen." 
 
 6. Migration into Britain. 
 
 Effect : Subjection of the 
 Celts. 
 
 § 2. Essentials in the Anglo- 
 Saxon Period. — 449-1066. 
 
 I. Conditions of Making a King- 
 dom. 
 
 1. To gain territory. 
 
 Effect : The Heptarchy. 
 
 2. To establish over-lordship. 
 
 Effect : Egbert, " King of the 
 English." 
 
 3. To keep out the Danes. 
 
 Effect : Peace of Wedmore 
 (9th c). 
 II. Keeping a Kingdom. 
 
 1. To hold territory against Danes. 
 
 Effect : Government under 
 Dunstan's influence. 
 
 2. "Weakness of Ethelred II.'s 
 
 policy. 
 Effect : Danish invasion. 
 
 3. Edmund Ironsides versus Ca- 
 
 nute. 
 Effect : Canute's reign of 
 power. 
 
 4. Anarchy in Danish govern- 
 
 ment. 
 Effect : Restoration of Saxon 
 line. 
 
 5. Foreign influence versus God- 
 
 win's party. 
 Effect : Exile of the latter. 
 
 6. Saxons versus Normans. 
 
 Effect : Norman Conquest. 
 § 3. Essentials in the Norman- 
 Angevin Period. — 1066- 
 1400. 
 I. The Development of a Sys- 
 tem of Government. 
 1. Struggle for territory and pos- 
 session. 
 Effect : Complete conquest of 
 England by William I. 
 
424 
 
 ENGLISH ESSENTIALS 
 
 [App. a 
 
 2. Establishment of the feudal 
 
 system. 
 Effect : Supremacy of the 
 King of England. 
 
 3. Census and oath of allegiance. 
 
 Effect: Suppression of bar- 
 ons. 
 II. Extension of Government to 
 THE People. 
 
 1. Henry I.'s Charter of Liberties. 
 
 1101. 
 Effect : Privileges to the 
 people. (Curia Regis.) 
 
 2. Henry II.'s Laws. 
 
 Effect : Purer courts. 
 
 3. Magna Charta. 1215. 
 
 Effect : " Liberty of the sub- 
 ject." 
 
 4. Summons of Representatives to 
 
 Parliament. 1295. 
 Effect : Broadening govern- 
 ment. 
 
 5. Edward I.'s Confirmation of 
 
 Magna Charta. 1297. 
 Effect : " No taxation without 
 representation." 
 
 6. Overthrow of system of land- 
 
 tenure. 
 Effect : Peasant revolt. 
 
 7. Deposition of king. 
 
 Effect : Parliamentary rights. 
 
 § 4. Essentials in the Lancas- 
 trian- Yorkish Period. — 
 1400-1485. 
 
 I. Asskrtion of Constitutional 
 Pow^ER. 
 
 1. Usurpation of Henry IV. upheld 
 
 by Parliament. 
 Effect : Power of Parliament. 
 
 2. Henry V.'s policy. 
 
 Effect : Conciliation at home ; 
 war abroad. 
 
 3. Parliamentary demands during 
 
 reigns of Henry Y. and 
 Henry VI. 
 Effect: Power in House of 
 Commons. 
 
 4. Trial by Jury strengthened. 1429. 
 
 Effect : Beginning of modern 
 system. 
 II. Decadence of Constitutional 
 Power. 
 
 1. King's minority demands pro- 
 
 tectorate. 
 Effect : Political factions. 
 
 2. Yorkish influence. 
 
 Effect : Compromise and 
 treaty. 
 
 3. Civil war. 
 
 Effect : Constitutional power 
 broken. 
 
 4. Edward IV. usurps throne. 
 
 Effect : Margaret's claim. 
 
 5. Edward's restoration. 
 
 Effect : Pressure of kingly 
 power in taxation. 
 
 6. Richard III. usurps throne. 
 
 Effect : Overthrow of York 
 party. 
 § 5. Essentials in the Tudor Pe- 
 riod. — 1485-1603. 
 
 I. The New Spirit in Investi- 
 
 gation, Exploration, and 
 Thought. 
 
 1. England's geographical inter- 
 
 ests. 
 Effect : Claims in America. 
 
 2. Henry VII. 's policy. 
 
 Effect : Continental alliances. 
 
 3. Progress of the " new learning." 
 
 Effect : Protestantism gets a 
 foothold. 
 
 4. Henry VIII.'s "balance of 
 
 power." 
 Effect : Peace permits de- 
 velopment. 
 
 5. Wolsey's policy. 
 
 Effect : King's supremacy. 
 
 6. Cranmer's and Cromwell's 
 
 policy. 
 Effect: Establishment of the 
 Anglican Church. 
 
 II. Party Factions develop in 
 
 THE Government. 
 1. Policy of Somerset and North- 
 umberland. 
 
1100-1660] 
 
 NORMANS TO STUARTS 
 
 426 
 
 Effect: Overthrow of Eoman 
 Catholic power. 
 
 2. Policy of Mary Tudor. 
 
 Effect ; Overthrow of Pro- 
 testantism. 
 
 3. Eeaction by Lords of the 
 
 Council. 
 Effect : Elizabeth crowned. 
 III. Growth of National Pkide 
 AND Power. 
 
 1. Elizabeth's policy with factious. 
 
 Effect : Unity in State. 
 
 2. Encouragement of art and 
 
 literature. 
 Effect : " Elizabethan Age." 
 
 3. Colonization in Ireland and 
 
 America. 
 Effect : English Protestant 
 settlements. 
 
 4. Spain's policy and Spanish Ar- 
 
 mada. 
 Effect : England's defiance. 
 § 6. Essentials in the Stuart 
 Period. — 1603-1714. 
 Constitutional struggle between 
 King and Commons. 
 I. Divine Right of Kings ver- 
 sus Parliament. 
 
 1. Attempt to establish control of 
 
 religion. 
 Effect : Failure to unite sects. 
 
 2. Demands of Parliament for re- 
 
 dress of grievances before 
 taxation. 
 Effect : Arbitrary rule of king. 
 
 3. Enthusiasm for colonization. 
 
 Effect : Early emigration into 
 Virginia. 
 
 4. Charles I.'s establishment of 
 
 " Divine Right of Kings." 
 Effect: Petition of Bight, 
 1628. 
 
 5. Establishment of " System 
 
 Thorough." 
 Effect: Grand Remonstrance. 
 
 6. Attempted suppression of free 
 
 speech in Parliament. 
 Effect : Civil war. 
 
 7. Military sway. 
 
 Effect : Execution of king. 
 
 II. Establishment of the Com- 
 
 monwealth. 
 
 1. Cromwell versus Charles II. 
 
 Effect : Subjection of Scotland 
 and Ireland. 
 
 2. Expulsion of Long Parliament. 
 
 Effect : Protectorate. 
 
 3. Influence of attempted frames 
 
 of government. 
 
 The Agreement of the People. 
 1648-49. 
 
 Instrument of Government. 16.53. 
 
 Effect : Temporarily inade- 
 quate ; later, types of con- 
 stitutions. 
 
 4. Cromwell's policy. 
 
 Effect : Rule of strength and 
 toleration. 
 
 5. Inadequacy of Protectorate un- 
 
 der Richard Cromwell. 
 Effect : Overthrow of Com- 
 monwealth. 
 
 III. Restoration of Stuart 
 
 House. — 1660. 
 
 1 . Re-establishment of ancient civil 
 
 polity. 
 Effect : Temporary union of 
 English people. 
 
 2. Foreign policy. 
 
 Effect : Triple Alliance versus 
 French subsidy. 
 
 3. Declaration of Indulgence. 
 
 Effect : Oath of Supremacy ; 
 Test Act. 
 
 4. Legislation for the " subject." 
 
 Effect ; Habeas Corpus Act, 
 1679. 
 
 5. Agitation of Exclusion Bill. 
 
 Effect : Monmouth party. 
 
 6. James II. 's policy. 
 
 Effect : Monmouth rebellion. 
 
 7. " Dispensing power." 
 
 Effect : Growing tyranny. 
 
 8. Importance of " Succession " 
 
 Effect: William of Orange 
 invited to England. 
 
426 
 
 ENGLISH ESSENTIALS 
 
 [App. a 
 
 9. Abdication of James IT. 
 
 Effect : Interregnum ; " Decla- 
 ration of Eights." 
 IV. The Revolution of 1688. 
 
 1. Policy of William and Mary. 
 
 Effect: Bill of Rights, 1689. 
 
 2. Insurrections. 
 
 Effect : Scotland and Ireland 
 subdued. 
 
 3. Alliance with Holland against 
 
 Louis XIV. 
 Effect: William of Orange 
 recognized by Peace of 
 Ryswick. 
 
 4. The cause of the Pretender in- 
 
 fluences England to join 
 the Grand Alliance. 
 Effect : England's share in the 
 War of the Spanish Suc- 
 cession. 
 
 5. Act of Settlement. 1701. 
 
 Effect: Protestant line se- 
 cured. 
 
 6. Anne's ministry. 
 
 Effect : Power of Whig nobles. 
 
 7. Dissolution of the Grand Alli- 
 
 ance. 
 Effect: Treaty of Utrecht 
 affects England in the Old 
 World and the New World. 
 
 8. Fall of Marlborough. 
 
 Effect : Tory power arises for 
 time being. 
 
 § 7. Essentials in the Hanove- 
 rian Period. — 1714-1815. 
 
 I. Whig Supremacy. 
 
 1. Influence of Act of Settlement. 
 
 Effect : George I. crowned king. 
 
 2. Policy of the Walpole ministry. 
 
 Effect : Reign of peace. 
 
 3. Development of economics. 
 
 Effect : Difficulties arising in 
 the legislation of reforms. 
 
 4. Foreign policy. 
 
 Effect : England's share in 
 the War of the Austrian 
 Succession. 
 
 5. Claims of the Jacobites. 
 
 Effect : The CuUoden field. 
 
 6. Broadening of colonial system. 
 
 Effect : Expansion of England. 
 
 7. Pitt's early policy. 
 
 Effect : Foreign relations. 
 
 8. England's share in Seven Years' 
 
 War. 
 Effect : French- American pos- 
 sessions become English. 
 
 9. Eastern administration. 
 
 Effect : England's eastern em- 
 pire. 
 
 II. Development of Colonial 
 
 Government. 
 
 1. English control. 
 
 Effect : Neglect gives the col- 
 onies confidence. 
 
 2. Colonial charters. 
 
 Effect: Conception of rights 
 of Englishmen ; Dummer's 
 Defence of the Charters. 
 
 III. English Side of the American 
 
 Revolution. 
 
 1. Colonial regulations. 
 
 Efl'ect : Principles of the 
 House of Commons versus 
 royal power. 
 
 2. Policy of Lord North. 
 
 Effect : Colonial defiance. 
 
 3. Struggle for independence by 
 
 American colonies. 
 Effect : Treaty of Paris, 1783. 
 
 IV. Napoleonic Wars. 
 
 1. Continental relations. 
 
 Effect : Alliance against Na- 
 poleon. 
 
 2. Continental system versus Or- 
 
 ders in Council. 
 Effect : Commercial life crip- 
 pled. 
 
 3. War of 1812. 
 
 Effect : United States recog- 
 nized as a " world-power." 
 
 4. Wellington versus Napoleon. 
 
 Effect : Fall of Napoleon. 
 
APPENDIX B 
 
 ESSENTIALS IN AMERICAN CONSTITUTIONAL 
 HISTORY 
 
 This analysis of American history is especially desij^ned to be a background for 
 the study of the documents printed above. The titles appear in italics. 
 
 § 1. Essentials in the Rivalry for 
 Possession of the Nevr 
 
 "World.— 1492-1689. 
 
 1. Search for a western passage 
 
 to Asia. 
 Effect : Discovery of America. 
 
 2. Claims of Spain. 
 
 Effect : Spanish settlements in 
 the South. 
 
 3. Claims of England. 
 
 Effect : Virginia and the At- 
 lantic seacoast. 
 
 4. Claims of France. 
 
 Effect : Settlements in the 
 North ; Louisiana. 
 
 5. Minor claims. 
 
 Effect: Dutch and Swedish 
 settlements. 
 
 6. Growing power in New France 
 
 and New England. 
 Effect: French and Indian 
 
 Wars. 
 § 2. Essentials in the Gro-wth of 
 Government in English 
 Colonies. — 1607-1643. 
 
 1. James I.'s policy in granting 
 
 royal charters. 
 Effect : London and Plymouth 
 companies. 
 
 2. Influence of the principle of 
 
 local self-government. 
 Effect : House of Burgesses, 
 1619, under Virginia char- 
 ter; independence of gov- 
 
 ernment in Massachusetts 
 Bay Company. 
 
 3. Influence of the spirit of organ- 
 
 ization. 
 Effect : " Freemen," towns, 
 counties, assemblies. 
 
 4. Influence of the doctrine of 
 
 vested rights protected by 
 charters. 
 Effect : Renewal of char- 
 ters. 
 
 5. Massachusetts's special prosper- 
 
 ity. 
 Effect : Colonial jealousies. 
 
 6. Disorder in the government in 
 
 England. 
 Effect : No interference in the 
 colonies, hence rapid de- 
 velopment. 
 
 7. Search for freedom from col- 
 
 onial control by Massachu- 
 setts. 
 Effect : Fresh settlements in 
 Connecticut, Rhode Island, 
 and New Haven. 
 
 8. Indian and Dutch encroach- 
 
 ments. 
 Effect : Pequod War ; New 
 England Confederacy. 
 3. Essentials in International 
 Relations at Home and 
 Abroad. — 1620-1763. 
 L Colonies versus Indians. 
 
 Effect : Civilization by Eng- 
 
428 
 
 AMERICAN ESSENTIALS 
 
 [App. B 
 
 lish; King Philip's "War, 
 1675. 
 
 2. Continental wars extend to New 
 
 France and New England. 
 Effect : King William's War ; 
 Queen Anne's War ; King 
 George's War. 
 
 3. Aggressive action towards colo- 
 
 nial charters. 
 Effect : " Defence of the New 
 England Charters," 1721. 
 
 4. Growing rivalry between Eng- 
 
 lish and French over the 
 " gateway of the West." 
 Effect : Colonies share in the 
 Seven Years' War. 
 
 5. Fall of Quebec. 
 
 Effect : French excluded from 
 the Continent by Peace of 
 Paris, 1763. 
 4. Essentials in the Revolu- 
 tion.— 1763-1783. 
 
 I. DiSCONTKNT WITH RoYAL GOV- 
 ERNMENT. — 1763-1775. 
 
 1. Restrictions on commerce and 
 
 manufactures. 
 Effect : Revolt against Navi- 
 gation Acts by smuggling. 
 
 2. Writs of assistance and Stamp 
 
 Act. 
 Effect : Stamp Act ; Congress 
 demands redress, 1765. 
 
 3. Repeal of Stamp Act ; Declara- 
 
 tory Act ; Townshend Act ; 
 Tea Tax. 
 Effect: Principles of "taxa- 
 tion without representa- 
 tion " invoked ; Boston Tea- 
 Party. 
 
 4. Aggressive acts of standing 
 
 army. 
 Effect : Boston Massacre. 
 
 5. Preliminaries of the Revolution. 
 
 Effres : Committees of Cor- 
 respondence; Committees 
 of Safety. 
 
 6. The four intolerable acts. 
 
 Effect: (1) First Continental 
 
 Congress; (2) Provincial 
 Congresses; (3) Massachu- 
 setts boycotted. 
 
 7. British regulars attempt to 
 
 break colonial military 
 preparations. 
 Effect : Revolutionary War 
 breaks out. 
 
 8. Investment of Boston. 
 
 Effect : Battle of Bunker Hill. 
 
 9. Second Continental Congress. 
 
 Effect : Assumption of national 
 powers for common defence. 
 II. Struggle to gain Independ- 
 ence. — 1776-1783. 
 
 1. Spirit of separation (Virginia 
 
 Bill ofRighla). 1776. 
 Effect : Declaration of Inde- 
 pendence, July 4, 1776. 
 
 2. Hopelessness of reconciliation. 
 
 Effect : Continuance of the 
 war. 
 
 3. Campaign at Saratoga a turning- 
 
 point. 
 Effect : The French alliance. 
 
 4. Southern campaigns. 
 
 Effect : Defeat of Cornwallis. 
 
 5. American commissioners ar- 
 
 range treaties : Provisional 
 Treaty, 1782; Treaty of Pa- 
 ris, 1783. 
 Effect : Final independence of 
 United States of America. 
 § 5. Essentials in Constitution 
 
 Building. — 1783-1790. 
 I. Struggle for Union in a 
 National Government. — 
 1783-1787. 
 
 1. Necessity for frame of govern- 
 
 ment. 
 Effect : Plans for Confedera- 
 tion, 1776-1781 ; Operation 
 of Articles of Confederation, 
 1781-1787. 
 
 2. Problem of governing territory. 
 
 Effect : Northivest Ordinance 
 of 1787. 
 
 3. Financial weakness. 
 
1675-1861] 
 
 COLONIES TO REBELLION 
 
 429 
 
 Effect : Constitutional Con- 
 vention, 1787. 
 II. Development of a Consti- 
 tutional Government. — 
 1787-1790. 
 
 1. State sovereignty develops con- 
 
 flicting interests and opinions. 
 Effect : Three great compro- 
 mises of the Constitutional 
 Convention. 
 
 2. Final struggle between Articles 
 
 of Confederation and Con- 
 stitution of United States, 
 1787-1790. 
 Effect : Ratification. 
 § 6, Essentials in the Develop- 
 ment of National Feel- 
 ing.— 1790-1825. 
 
 1. Hamilton's financial policy ver- 
 
 sus Jefferson's opposition. 
 Effect : Federalism ; Repub- 
 licanism. 
 
 2. Maintenance of domestic order. 
 
 Effect : Suppression of Whis- 
 key Rebellion. 
 
 3. Jay's Treaty and its effect upon 
 
 France. 
 Effect : American policy to- 
 wards foreign nations influ- 
 enced by Washington's 
 Farewell Address, 1797. 
 
 4. Alien and Sedition Acts. 
 
 Effect : Fall of Federal Party. 
 
 5. Power of Democratic-Republi- 
 
 canism. 
 Effect : International relations 
 (Louisiana, Tripoli, " Chesa- 
 peake "). 
 
 6. Question of neutral rights with 
 
 France and England. 
 Effect: War of 1812. 
 
 7. Rapid settlement of the West. 
 
 Effect : New States. 
 8 Growing demand for national- 
 ization. 
 
 Effect : Supreme Court deci- 
 sions upon bank (McCulloch 
 V. Maryland), States, etc. 
 
 9. Our policy towards the Amer- 
 icas. 
 Effect : Independence of Span- 
 ish colonies ; Florida treaty. 
 10. Resistance to European inter- 
 vention ; Holy Alliance. 
 Effect : Russian treaty ; Mon- 
 roe Doctrine, 1823. 
 § 7. Essentials in the Growth 
 of Sectional Feeling. 
 
 1. Slavery. 
 
 Effect : Development of doc- 
 trine of State rights ; Mis- 
 souri Compromise. 
 
 2. Divergence of interests in the 
 
 sections. 
 Effect : Rapid growth of North 
 and South. 
 
 3. Tariff question. 
 
 Effect : Yielding of the prin- 
 ciple of protection. 
 
 4. Question of nullification. 
 
 Effect : Jackson's attitude. 
 
 5. Mexican War. 
 
 Effect : Acquisition of Texas 
 and California. 
 
 6. Repeal of Missouri Compromise. 
 
 Effect : Growth of antislavery 
 sentiment. 
 
 7. Efforts of South for more slave 
 
 territory. 
 Effect : Compromises of 1 850 ; 
 Cuban question. 
 
 8. The Bred Scott Case. 1857. 
 
 Effect : Party feeling. 
 
 9. Campaign of 1860. 
 
 Effect : Secession and forma- 
 tion of the Confederate 
 States of America. 
 § 8. Essentials in the War of the 
 Rebellion. — 1861-1865. 
 
 1. Firing on Fort Sumter. 
 
 Effect : Arousal of North to 
 the defence of the Union. 
 
 2. Fears of foreign intervention. 
 
 Effect: The Trent affair; Sew- 
 ard's diplomacy ; invasion 
 of Mexico by Napoleon III. 
 
430 
 
 AMERICAN ESSENTIALS 
 
 [App. B 
 
 3. Importance of salvation of 
 
 border States. 
 Effect : Campaigns of 1862. 
 
 4. What to do with slavery. 
 
 Effect : " Contraband of war ; " 
 Emancipation Proclamation, 
 1862, 1863. 
 
 5. Attempted invasion of the 
 
 North. 
 Effect : Gettysburg. 
 
 6. The " Hammering Campaign." 
 
 Effect : Appomattox ; peace 
 and amnesty, April 9, 1865. 
 § 9. Essentials in Reconstruc- 
 tion. 1864-1877. 
 
 1. Military government. 
 
 Issue : Carpet-bag government 
 and plundering of exhausted 
 South. 
 
 2. Thirteenth Amendment. 1865. 
 
 Issue : Abolition of slavery. 
 Fourteenth Amendment. 1866. 
 
 Effect : The negro made a citi- 
 zen; validity of war debt 
 established ; Confederate 
 debt repudiated ; disfran- 
 chisement of whites of South 
 followed by final removal of 
 political disabilities. 
 Fifteenth Amendment. 1870. 
 
 Effect : Negro suffrage ; tissue 
 ballot ; registration laws 
 depriving negro suffrage ; 
 Ku-Klux Klan. 
 
 3. Quarrel between executive and 
 
 Congress. 
 Effect: Civil Rights Bill; 
 Tenure of Office Act ; im- 
 peachment of President. 
 
 4. Election of Hayes. 
 
 Effect : Electoral Commission ; 
 withdrawal of military from 
 the South and final restora- 
 tion of local self-govern- 
 ment. 
 § 10. Essentials in Social and 
 Economic Discussions 
 since the Civil War. 
 
 1. Payment of war debt. 
 
 Issue : Public credit strength- 
 ened ; bonds appreciated ; 
 specie payments resumed. 
 
 2. Building of Pacific railroads. 
 
 Issue : New States ; rapid de- 
 velopment of the West ; 
 land speculations. 
 
 3. Panic of 1873. 
 
 Issue : Attempted inflation. 
 
 4. Immigration. 
 
 Issue : Restriction of Chinese. 
 
 5. Free trade revived. 
 
 Issue: Morrison Bill; Mills 
 Bill; Wilson Bill. 
 
 6. Money questions. 
 
 Issue : Labor agitation, cul- 
 mination in campaign of 
 1896. 
 
APPENDIX C 
 
 TEXT OF THE HABEAS CORPUS ACT, 1679 
 
 An Act for the better secureing the Liberty of the Subject and for 
 Prevention of Imprisonments beyond the Seas, 
 
 I. Whereas great Delayes have beene used by Sheriffes Goalers 
 and other Ofl&cers to whose Custody any of the Kings Subjects have 
 beene committed for criminall or supposed criminall Matters in 
 makeing Returnes of Writts of Habeas Curpus to them directed by 
 standing out an Alias and Pluries Habeas Corpus and sometimes 
 more and by other shifts to avoid their yeilding Obedience to such 
 Writts contrary to their Duty and the knowne Lawes of the Land 
 whereby many of the Kings Subjects have beene and hereafter may be 
 long detained in Prison in such Cases whei'e by Law they are baylable 
 to their great charge and vexation. For the prevention whereof and 
 the more speedy Releife of all persons imprisoned for any such crim- 
 inall or supposed criminall Matters Bee it enacted by the Kings most 
 Excellent Majestic by and with the Advise and Consent of the Lords 
 Spirituall and Temporall and Commons in this present Parlyament 
 assembled and by the autboritie thereof That whensoever any person 
 or persons shall bring any Habeas Corpus directed unto any Sheriffe 
 or Sheriffes Gaoler Minister or other Person whatsoever for any per- 
 son in his or their Custody and the said Writt shall be served upon 
 the said Officer or left at the Goale or Prison with any of the Under 
 Officers Underkeepers or Deputy of the said Officers or Keepers that 
 the said Officer or Officers his or their Under Officers Under-Keepers 
 or Deputyes shall within Thi-ee dayes after the Service thereof as 
 aforesaid (unlesse the Committment aforesaid were for Treason or 
 Fellony plainely and specially expressed in the Warrant of Committ- 
 ment) [upon Payment or Tender of the Charges of bringing the said 
 Prissoner to be ascertained by the Judge or Court that awarded the 
 same and endorsed upon the said Writt not exceeding Twelve pence 
 per Mile] and upon Security given by his owne Bond to pay the 
 Charges of carrying backe the Prisoner if he shall bee remanded by 
 the Court or Judge to which he shall be brought according to the true 
 intent of this present Act and that he will not make any escape by 
 
432 - HABEAS CORPUS ACT [App. C 
 
 the way make Returns of such Writt [or] bring or cause to be brought 
 the Body of the Partie soe committed or restrained unto or before the 
 Lord Chauncellor or Lord Keeper of the Great Seale of England for 
 the time being or the Judges or Barons of the said Court from whence 
 the said Writt shall issue or unto and before such other person [and] 
 persons before whome the said Writt is made returnable according 
 to the Command thereof, and shall [likewise then] certifie the true 
 causes of his Detainer or Imprisonment unlesse the Committment of 
 the said Partie be in any place beyond the distance of Twenty miles 
 from the place or places where such Court or Person is or shall be 
 resideing and if beyond the distance of Twenty miles and not above 
 One hundred miles then within the space of Ten dayes and if beyond 
 the distance of One hundred miles then within the space of Twenty 
 dayes after such delivery aforesaid and not longer. 
 
 II. [And to the intent that noe Sheriffe Goaler or other Officer 
 may pretend ignorance of the import of any such Writt Bee it en- 
 acted by the Authoritie aforesaid That all such Writts shall be 
 marked in this manner Per Statutum Tricesimo primo Caroli Secundi 
 Regis and shall be signed by the person that awards the same] And 
 if any person or persons shall be or stand committed or detained as 
 aforesaid for any Crime unlesse for Treason or Fellony plainely ex- 
 pressed in the Warrant of Committment in the Vacation time and 
 out of Terme it shall and may be lawfull to and for the person or 
 persons soe committed or detained (other than persons Convict or in 
 Execution) by legall Processe or any one [in] his or their behalfe to 
 appeale or complaine to the Lord Chauncellour or Lord Keeper or 
 any one of His Majestyes Justices [either] of the one Bench or of 
 the other or the Barons of the Exchequer of the Degree of the Coife 
 and the said Lord Chauncellor Lord Keeper Justices or Barons or 
 any of them upon view of the Copy or Copies of the Warrant or 
 Warrants of Committment and Detainer or otherwise upon Oath 
 made that such Copy or Copyes were denyed to be given by such 
 person or persons in whose Custody the Prisoner or Prisoners is or 
 are detained are hereby authorized and required [upon Request made 
 in Writeing by such person or persons or any on his her or their 
 behalfe attested and subscribed by two Witnesses [that] were present 
 at the delivery of the same] to award and grant an Habeas Corpus 
 under the Seale of such Court whereof he shall then be one of the 
 Judges to be directed to the Officer or Officers in whose Custodie the 
 Party soe committed or detained shall be returnable immediate be- 
 fore the said [Lord Chauncellor or] Lord Keeper or such Justice 
 Baron or any other Justice or Baron of the Degree of the Coife of 
 any of the said Courts and upon Service thereof as aforesaid the 
 Officer or Officers his or their Under-Officer or Under Officers Under 
 
1679] TEXT 433 
 
 Keeper or Under Keepers or [their] Deputy in whose custodie the 
 Partie is soe committed or detained shall within the times respectively 
 before liraitted [bring such Prisoner or Prisoners] before the sd Lord 
 Chauncellor or Lord Keeper or such Justices Barons or one of thera 
 [before whome the said Writt is made returnable and in case of his 
 absence before any other of them] with the Returne of such Writt 
 and the true Causes of the Committment and Detainer and there- 
 upon within two dayes after the Partie shall be brought before 
 them the said Lord Chauncellor or Lord Keeper or such Justice or 
 Baron before whome the Prisoner shall be brought as aforesaid shall 
 discharge the said Prisoner from his Imprisonment takeing his or 
 their Recognizance with one or more Suretie or Sureties in any 
 summe according to their discretions haveing reguard to the quality of 
 the Prisoner and nature of the Offence for his or their appearance in 
 the Court of Kings Bench the Terme following or at the next Assizes 
 Sessions or Generall Goale-Delivery of and for such County City or 
 Place where the Committment was or where the Offence was com- 
 mitted or in such other Court where the said Offence is properly 
 cognizable as the Case shall require and then shall certifie the said 
 Writt with the Returne thereof and the said Recognizance or Recog- 
 nizances into the said Court where such Appearance is to be made 
 unlesse it shall appeare unto the said Lord Chauncellor or Lord 
 Keeper or Justice or Justices [or] Baron or Barons that the Party soe 
 committed is detained upon a legall Processe Order or Warrant out 
 of some Court that hath Jurisdiction of Criminall Matters or by 
 some Warrant signed and sealed with the Hand and Seale of any of 
 the said Justices or Barons or some Justice or Justices of the Peace 
 for such Matters or Offences for the which by the Law the Prisoner 
 is not Baileable. 
 
 III. [Provided alwayes and bee it enacted That if any person shall 
 have wilfully neglected by the space of t"wo whole Termes after his 
 Imprisonment to pray a Habeas Corpus for his Enlargement such per- 
 son soe wilfully neglecting shall not have any Habeas Corpus to be 
 granted in Vacation time in pursuance of this Act.] 
 
 IV. And bee it further enacted by the Authoritie aforesaid That if 
 any Officer or Officers his or their Under-Officer or Under-Officers 
 Under-Keeper or Under-Keepers or Deputy shall neglect or refuse to 
 make the Retm-nes aforesaid or to bring the Body or Bodies of the 
 Prisoner or Prisoners according to the Command of the said Writt 
 within the respective times aforesaid or upon Demand made by the 
 Prisoner or Person in his behalfe shall refuse to deliver or within the 
 space of Six houres after demand shall not deliver to the person soe 
 demanding a true Copy of the Warrant or Warrants of Committment 
 and Detayner of such Prisoner, which he and they are hereby required to 
 
 28 
 
434 HABEAS CORPUS ACT [App. C 
 
 deliver accordingly all and every the Head Goalers and Keepers of such 
 Prisons and such other person in whose Custodie the Prisoner shall 
 be detained shall for the first Offence forfeite to the Prisoner or Partie 
 grieved the summe of One hundred pounds and for the second Offence 
 the summe of Two hundred pounds and shall and is hereby made in- 
 capeable to hold or execute his said Office, the said Penalties to be 
 recovered by the Prisoner or Partie grieved his Executors or Admin- 
 istrators against such Offender his Executors or Administrators by 
 any Action of Debt Suite Bill Plaint or Information in any of the 
 Kings Courts at Westminster wherein noe Essoigne Protection Privi- 
 ledge Injunction Wager of Law or stay of Prosecution by Non vult 
 ulterius prosequi or otherwise shall bee admitted or allowed or any 
 more then one Imparlance, and any Recovery or Judgement at the 
 Suite of any Partie grieved shall be a sufficient Conviction for the 
 first Offence and any after Recovery or Judgement at the Suite of a 
 Partie grieved for any Offence after the first Judgement shall bee a 
 sufficient Conviction to bring the Officers or Person within the said 
 Penaltie for the second Offence. 
 
 V. And for the prevention of unjust vexation by reiterated Com- 
 mittments for the same Offence Bee it enacted by the Authoritie afore- 
 said That noe person or persons which shall be delivered or sett at 
 large upon any Habeas Corpus shall at any time here after bee againe 
 imprisoned or committed for the same Offence by any person or per- 
 sons whatsoever other then by the legall Order and Processe of such 
 Court wherein he or they shall be bound by Recognizance to appears 
 or other Court haveing Jurisdiction of the Cause and if any other 
 person or persons shall knowingly contrary to this Act recommitt or 
 imprison or knowingly procure or cause to be recommitted or impris- 
 oned for the same Offence or pretended Offence any person or persons 
 delivered or sett at large as aforesaid or be knowingly aiding or as- 
 sisting therein then he or they shall forfeite to the Prisoner or Partie 
 grieved the summe of Five hundred pounds Any colourable pretence 
 or variation in the Warrant or Warrants of Committment notwith- 
 standing to be recovered as aforesaid. 
 
 VI. Provided alwayes and bee it further enacted That if any 
 person or persons shall be committed for High Treason or Fellony 
 plainely and specially expressed in the Warrant of Committment upon 
 his Prayer or Petition in open Court the first Weeke of the Terme or 
 first day of the Sessions of Oyer and Terminer or Generall Goale 
 Delivery to be brought to his Tryall shall not be indicted sometime 
 in the next Terme Sessions of Oyer and Terminer or Generall Goale 
 Delivery after such Committment it shall and may be lawfull to and 
 for the Judges of the Court of Kings Bench and Justices of Oyer and 
 Terminer or Generall Goale Delivery and they are hereby required 
 
1679] TEXT 435 
 
 upon motion made to them in open Court the last day of the Terme 
 Sessions or Goale-Delivery either by the Prisoner or any one in his 
 behalf 8 to sett at Liberty the Prisoner upon Baile unlesse it appeare 
 to the Judges and Justices upon Oath made that the Witnesses for 
 the King could not be produced the same Terme Sessions or Generall 
 Goale-Delivery. And if any person or persons committed as aforesaid 
 upon his Prayer or Petition in open Court the first weeke of the Terme 
 or first day of the Sessions of Oyer and Terminer or Generall Goale 
 Delivery to be brought to his Tryall shall not be indicted and tryed 
 the second Terme Sessions of Oyer and Terminer or Generall Goale 
 Delivery after his Committment or upon his Tryall shall be acquitted 
 he shall be discharged from his Imprisonment. 
 
 VII. [Provided alwayes That nothing in this Act shall extend to 
 discharge out of Prison any person charged in Debt or other Action 
 or with Processe in any Civill Cause but that after he shall be dis- 
 charged of his Imprisonment for such his Criminall Offence he shall 
 be kept in Custodie according to Law for such other Suite.] 
 
 VIII. Provided alwaies and bee it enacted by the Persons com- 
 Authoritie aforesaid That if any person or persons Sub- pittedforcrim- 
 ject of this Realms shall be committed to [any] Prison ^^ ^g removed 
 or in Custodie of any Officer or Officers whatsoever for but by Habeas 
 any Criminall or supposed Criminall matter That the i^° ^^'^writ °*^^^'" 
 said pex'son shall not be removed from the said Prison 
 
 and Custody into the Custody of any other Officer or 
 Officers unlesse it be by Habeas Corpus or some other 
 Legall Writt or where the Prisoner is delivered to the 
 Constable or other inferiour Officer to carry such Pris- 
 oner to some Common Goale or where any person is sent 
 by Order of any Judge of Assize or Justice of the Peace 
 to any common Worke-house or House of Correction or 
 where the Prisoner is removed from one Prison or place 
 to another within the same County in order to his or her 
 Tryall or Discharge in due course of Law or in case of 
 suddaine Fire or Infection or other necessity] and if any 
 person or persons shall after such Committment afore- . 
 said make out and signe or countersigne any Warrant or 
 Warrants for such removeaU aforesaid contrary to this 
 Act as well he that makes or signes or countersignes such 
 Warrant or Warrants as the Officer or Officers that obey 
 or execute the same shall suffer and incurr the Paines 
 and Forfeitures in this Act before-mentioned both for the 
 first and second Offence respectively to be recovered in 
 manner aforesaid by the Partie grieved. Penalty. 
 
436 
 
 HABEAS CORPUS ACT 
 
 [App. C 
 
 Proviso for 
 application for 
 and granting 
 Habeas Corpus 
 in vacation- 
 time. 
 
 Lord Chan- 
 cellor, &c., un- 
 dulv denying 
 Writ; 
 
 Penaltv to 
 Party ^500. 
 
 Undue denial 
 of Writ. 
 
 Habeas Corpus 
 available 
 throughout the 
 Dominion. 
 
 No Subject to 
 be sent Pris- 
 oner into Scot- 
 land, &c., or 
 any Parts be- 
 yond the Seas. 
 
 Persons so im- 
 prisoned may 
 maintain Ac- 
 tion against 
 the Person 
 committing or 
 otherwise act- 
 ing in respect 
 thereof, as 
 herein men- 
 tioned. 
 
 IX. Provided alsoe and bee it further enacted by the 
 Authoritie aforesaid That it shall and may be lawfull 
 to and for any Prisoner and Prisoners as aforesaid to 
 move and obtaine his or their Habeas Corpus as well out 
 of the High Court of Chauncery or Court of Exchequer as 
 out of the Courts of Kings Bench or Common Pleas or 
 either of them And if the said Lord Chauncellor or 
 Lord Keeper or any Judge or Judges Baron or Barons 
 for the time being of the Degree of the Coife of any of 
 the Courts aforesaid in the Vacation time upon view of 
 the Copy or Copies of the Warrant or Warrants of Com- 
 mittment or Detainer or upon Oath made that such Copy 
 or Copyes were denyed as aforesaid shall deny any Writt 
 of Habeas Corpus by this Act required to be granted be- 
 ing moved for as aforesaid they shall severally f orfeite to 
 the Prisoner or Partie grieved the summe of Five hun- 
 dred pounds to be recovered in manner aforesaid. 
 
 X. And bee it enacted and declared by the Authority 
 aforesaid That an Habeas Corpus according to the true 
 intent and meaning of this Act may be directed and runn 
 into any County Palatine The Cinque Ports or other 
 priviledged Places within the Kingdome of England 
 Dominion of Wales or Towne of Berwicke upon Tweede 
 and the Islands of Jersey or Guernsey Any Law or Usage 
 to the contrary notwithstanding. 
 
 XI. And for preventing illegall Imprisonments in 
 Prisons beyond the Seas. Bee it further enacted by the 
 Authoritie aforesaid That noe Subject of this Realme 
 that now is or hereafter shall be an Inhabitant or Resiant 
 of this Kingdome of England Dominion of Wales or 
 Towne of Berwicke upon Tweede shall or may be sent 
 Prisoner into Scotland Ireland Jersey Gaurnsey Tangeir 
 or into any Parts Garrisons Islands or Places beyond the 
 Seas which are or at any time hereafter [shall be] within 
 or without the Dominions of His Majestic His Heires or 
 Successors and that every such Imprisonment is hereby 
 enacted and adjudged to be illegal and that if any of the 
 said Subjects now is or hereafter shall bee soe imprisoned 
 [every such person and persons soe imprisoned] shall and 
 may for every such Imprisonment maintaine by virtue of 
 this Act an Action or Actions of false Imprisonment in 
 any of His Majestyes Courts of Record against the per- 
 son or persons by whome he or she shall be soe committed 
 detained imprisoned sent Prisoner or transported contrary 
 
1679] TEXT 437 
 
 to the true meaning of this Act and against all or any 
 person or persons that shall frame contrive write seale or 
 countersigue any Warrant or VVriteing for such Com- 
 mittment Detainer Imprisonment or Transportation or 
 shall be adviseing aiding or assisting in the same or any 
 of them and the Plaintiff e in every such Action shall have 
 Judgement to recover his treble Costs besides Damages Treble Costs 
 -which Damages soe to be given shall not be lesse then ^^^ Damages. 
 Five hundred pounds. In which Action noe delay stay 
 or stopp of Proceeding by Rule Order or Command nor 
 noe Injunction Protection or Priviledge whatsoever nor 
 any more then one Imparlance shall be allowed [except- 
 ing such Kule of the Court wherein the Action shall 
 depend made in open Court as shall bee thought in 
 Justice necessary for speciall cause to be expressed in the 
 said Rule] and the person or persons who shall know- 
 ingly frame contrive write seale or countersigue any 
 Warrant for such Committment Detainer or Transporta- 
 tion or shall soe committ detaine imprison or transport The Per- 
 
 . , . , , V son so com- 
 
 any person or persons contrary to this Act or be any mjttino- or 
 
 wayes adviseing aiding or assisting therein being lawfully acting disabled 
 convicted thereof shall be disabled from thenceforth to arT™incur '^' 
 beare any Office of Trust or Proffitt within the said Premunire 
 Realme of England Dominion of Wales or Towne of ^^ ^- "• ^- ^■ 
 Berwicke upon Tweede or any of the Islands Territories 
 or Dominions thereunto belonging and shall incurr and 
 sustaine the Paines Penalties and Forfeitm-es limitted 
 ordained and provided in the Statute of Provision and 
 Premunire made in the Sixteenth yeare of King Richard 
 the Second and be incapeable of any Pardon from the -^J^^ ^/p°'^|'P' 
 King His Heires or Successors of the said Forfeitures 
 Losses or Disabilities or any of them. 
 
 XII. [Provided alwayes That nothing in this Act 
 shall extend to give benefitt to any person who shall 
 by Contract in writeing agree with any Merchant or 
 Owner of any Plantation or other person whatsoever to 
 be transported to any parts beyond Seas and receive 
 earnest upon such Agreement although that afterwards 
 such person shall renounce such Contract.] 
 
 XIII. Provided alwayes and bee it enacted That if ^o*" Trans- 
 any person or persons lawfully convicted of any Felony persons con- 
 shall in open Court pray to be transported beyond the victed of fel- 
 
 Seas and the Court shall thinke fitt to leave him or them *^"^ ?' . . 
 . -p . - ,, , , praj'ingtobe 
 
 m Prison tor that purpose such person or persons may transported. 
 
438 
 
 HABEAS CORPUS ACT 
 
 [App. C 
 
 Proviso re- 
 specting Im- 
 prisonment of 
 Persons before 
 1st June 1679. 
 
 After Assizes 
 Persons de- 
 tained may 
 have Habeas 
 Corpus. 
 
 be transported into any parts beyond the Seas. This 
 Act or any thing therein contained to the contrary 
 notwithstanding. 
 
 XIV. Provided alsoe and bee it enacted That nothing 
 herein contained shall be deemed construed or taken to 
 extend to the Imprisonment of any person before the 
 First day of June One thousand sixe hundred seaventy 
 and nine or any thing advised procured or otherwise done 
 relateing to such Imprisonment. Any thing herein con- 
 tained to the contrary notwithstanding. 
 
 XV. Provided alsoe That if any person or persons at 
 any time resiant in this Realme shall have committed 
 any Capitall Offence in Scotland or Ireland or any of the 
 Islands or Forreigne Plantations of the King His Heires 
 or Successors where he or she ought to be tryed for such 
 Offence such person or persons may be sent to such place 
 there to receive such Tryall in such manner as the 
 same might have beene used before the makeing of 
 this Act Any thing herein contained to the contrary 
 notwithstandi ng. 
 
 XVI. Provided alsoe and bee it enacted That noe 
 person or persons shall be sued impleaded molested or 
 troubled for any Offence against this Act unlesse the 
 Partie offending be sued or impleaded for the same 
 within Two yeares at the most after such time wherein 
 the Offence shall be committed [in case the partie grieved 
 shall not be then in Prison and if he shall be in Prison 
 then within the space of Two yeares] after the decease of 
 the Person imprisoned or his or her delivery out of Prison 
 which shall first happen. 
 
 XVII. And to the intent noe person may avoid his 
 Tryall at the Assizes or Generall Goale- Delivery by pro- 
 cureing his Removeall before the Assizes at such time as 
 he cannot be brought backe to receive his Tryall there 
 Bee it enacted That after the Assizes proclaimed for that 
 County where the Prisoner is detained noe person shall 
 be removed from the Common Goale upon any Habeas 
 Corpus granted in pursuance of this Act but upon any 
 such Habeas Corpus shall be brought before the Judge 
 of Assize in open Court who is thereupon to doe what to 
 Justice shall appertaine. 
 
 ' XVIII. Provided nevertheless That after the Assizes 
 are ended any person or persons detained may have his 
 or her Habeas Corpus according to the Direction and In- 
 tention of this Act. 
 
1679] TEXT 439 
 
 XIX. And bee it also enacted by the Authoritie 
 aforesaid That if any Information Suite or Action shall 
 be brought or exhibited against any person or persons 
 for any Offence committed or to be committed against 
 the Forme of this Law it shall be lawfull for such De- 
 fendants to pleade the Generall Issue that they are not 
 guilty or that they owe nothing and to give such speciall 
 matter in Evidence to the Jury that shall try the same 
 which matter being pleaded had beene good and sufficient 
 matter in Law to have discharged the said Defendant or 
 Defendants against the said Information Suite or Action 
 and the said matter shall be then as availeable to him or 
 them to all intents and purposes as if he or they had suf- 
 ficiently pleaded sett forth or alledgedthe same matter in 
 Barr or Discharge of such Information Suite or Action. 
 
 XX. A^D because many times Persons charged with 
 Petty Treason or Felony or as Accessaries thereunto are 
 committed upon Suspicion onely whereupon they are 
 Baileable or not according as the Circumstances make- 
 ing out that Suspicion are more or lesse weighty which 
 are best knowne to the Justices of Peace that committed 
 the persons and have the Examinations before them or 
 to other Justices of the Peace in the County Bee it there- 
 fore enacted That where any person shall appeare to be 
 committed by any Judge or Justice of the Peace and 
 charged as Accessary before the Fact to any Petty Trea- 
 son or Felony or upon Suspicion thereof or with Sus- 
 picion of Petty Treason or Felony which Petty Treason 
 or Felony shall be plainely and specially expressed in the 
 Warrant of Committment that such Person shall not be 
 removed or bailed by vertue of this Act or in any other 
 manner then they might have beene before the makeing 
 of this Act. 
 
 The Statutes of tie Realm, V. 935-938. 31° Car. II. c. 2. 
 
APPENDIX D 
 
 LIST OF AUTHOES CITED 
 
 This list includes every work from which citations have been made, in the edition 
 used. The names of the publishers are inserted for all copyright material; and 
 the thanks expressed in the Preface for the privilege of using the extracts are here 
 gratefully repeated. 
 
 Charles Francis Adams. Imperialism and the Tracks of our Forefathers, 
 
 Boston, Dana Estes & Co., 1899. 
 Jnh-n Adams. Works. (Edited by Charles Francis Adams.) 10 vols. 
 
 Boston, 1850-1856. 
 John Adams and Abigail Adams. Familiar Letters during the Revolution. 
 
 (Edited by Charles Francis Adams.) JS^ew York, Hurd & Houghton, 
 
 1876. 
 John Quincy Adams. Memoirs. (Edited by Charles Francis Adams). 12 
 
 vols. Philadelphia, Lippincott, 1874-1877. 
 American Historical Keview. 5 vols. New York, Macmillan, 1896-1900. 
 Anonymous. America's Appeal to the Impartial World: wherein the Rights of 
 
 Americans as Men, British Subjects, and as Colonists . . . are Stated and 
 
 Considered. Hartford, 1775. 
 Anonymous. A Plain State of the Argument between Great Britain and her 
 
 Colonies. London, 1775. 
 Anonymous. Proposals for Uniting the English Colonies on the Continent of 
 
 America so as to enable them to act with Force and Vigour against their 
 
 Enemies. London, 1757. 
 Walter Bagehot. English Constitutional History. Oxford, Clarendon Press, 
 
 1891. 
 Frederic Bancroft. Life of William H. Seward. 2 vols. New York, 
 
 Harper, 1900. 
 George Bancroft, A History of the United States. (Author's Last Re- 
 vision.) 6 vols. New York, Appleton, 1883-1885. 
 Thomas Hart Benton. Historical and Legal Examination of , . . the 
 
 Decision of the Supreme Court of the United States in the Dred Scott 
 
 Case. New York, Appleton, 1851. 
 Horace Binney. An Inquiry into the Formation of Washington's Farewell 
 
 Address. Philadelphia, Parry & Macmillan, 1859. 
 
ADAMS— CUR TIS 441 
 
 ■William Blackstone. Commentaries. (Edited by William Draper Lewis.) 
 4 books. Philadelphia, Welsh, Rees &, Co., 1897. 
 
 James G. Blaine. Twenty Years of Congress, 1861-1881. 2 vols. Nor- 
 wich, Henry BiU Publishing Co., 1884. 
 
 Charles Borgeaud. Adoption and Amendment of Constitutions in Europe and 
 America. (Translated by Charles D. Hazen.) New York, Macmillan, 
 1895. 
 
 Charles Borgeaud. The Rise of Modern Democracy in Old and New Eng- 
 land. (Translated by Mrs. Birkbeck HiU.) London, Swan, Sonnen- 
 scheiu & Co., and New York, Scribner, 1894. 
 
 Emile Boutmy. The English Constitution. (Translated by Isabel M.Eaden.) 
 
 London and New York, Macmillan, 1891, 
 James Bryce. The American Commonwealth. Abridged edition. New 
 
 York, Macmillan, 1896. 
 Edmund Burke. Works. 9 vols. Boston, 1839. 
 
 Gilbert Burnet. History of His Own Time. 2 vols. London, 1724-1734. 
 Jacob Burnet. Notes on the Early Settlement of the Northwestern Territory. 
 
 New Y'ork, 1847. 
 Thomas Carlyle. Oliver Cromwell's Letters and Speeches, with Elucidations. 
 
 4 vols. New York, Scribner, 1897. 
 Francis BickneU Carpenter. Six Months at the White House with Abraham 
 
 Lincoln. New York, Hurd & Houghton, 1866. 
 Edward Channing. Students' History of the United States. New York, 
 
 Macmillan, 1898. 
 Jeremiah Chaplin. Words of our Hero, Ulysses S. Grant. Boston, Lo- 
 
 throp, 188.5. 
 Salmon Portland Chase. A Sketch of the History of Ohio. Cincinnati, 1833. 
 "William Cobbett. The Parliamentary History of England, from the Earliest 
 
 Period to the Year 1803. 36 vols. London, 1806-1820. (Usually called 
 
 " Hansard's Parliamentary History.") 
 Charles Carleton Coffin. Freedom Triumphant : Fourth Period of the War 
 
 of the Rebellion, Sept., 1864, to close. New York, Harper, 1891. 
 Congressional Globe. 109 vols. Washington, 1835-1873. 
 Congressional Record. 33 vols, in 192. Washington, 1873-1900. 
 Thomas M. Cooley. The General Principles of Constitutional Law. Boston, 
 
 Little, Brown & Co., 1891. 
 Bartholomew de Cotton. Historia Anglicana. (Edited by Henry Richards 
 
 Luard.) London, Longmans, 1859. 
 Edward Shepherd Creasy. Rise and Progress of the English Constitution. 
 
 New York, Appleton, 1859. 
 Benjamin Bobbins Curtis. Reports of Decisions in the Supreme Court of the 
 
 United States. With Notes arid a Digest. 23 vols. Boston, Little & 
 
 Brown, 1881. 
 
 George Ticknor Curtis. Constitutional History of the United States. New 
 York, Harper, 1889. 
 
442 AUTHORITIES [App. D 
 
 "WiUiam Parker Cutler and Julia Perkins Cutler. Life, Journals, and 
 
 Correspondence of B.ev. Manasseh Cutler. 2 vols. Cincinnati, Robert 
 
 Clarke & Co., 188&. 
 Kicliard. Henry Dana. JVheaton's Elements of International Law. Boston, 
 
 Little, Brown & Co., 1866. 
 Albert Venn Dicey. Lectures Introductori/ to the Study of the Law of the 
 
 Constitution. London, Macmillan, 1885. 
 Jeremiah. Dummer. A Defence of the New England Charters. London, 
 
 1721. 
 ■William Archibald Dunning. Essays on the Civil War and Reconstruc- 
 tion and Related Topics. New York, etc., Macmillan, 1898. 
 Edinburgh Eeview. 192 vols. London, Longmans, 1806-1900. 
 H. St. Clair Fielden. A Short Constitutional History of England. (Edited 
 
 \>j W. Gray Etheridge.) London, Blackwell; Boston, Ginn, 1895. 
 Sidney George Fisher. The Evolution of the Constitution of the United 
 
 States. Philadelphia, Lippincott, 1897. 
 John Fiske. The American Revolution. 2 vols. Boston, Houghton, Mifflin 
 
 & Co., 1892. 
 John Fiske. The Critical Period of American History, 1783-1789. Boston, 
 
 Houghton, Mifflin & Co., 1899. 
 Henry Jones Ford. The Rise and Growth of American Politics. New York, 
 
 Macmillan, 1898. 
 Paul Leicester Ford. Pamphlets on the Constitution. Brooklyn, P. L. Pord, 
 
 1888. 
 John Forster. Eminent British Statesmen. London, 1837. 
 ■William Forsyth. History of Trial hy .Jury. London, 1852. 
 Sir John Fortescue. De Laudibus Legum Anglice. London, 1741. 
 Edward Augustus Freeman. Historical Essays. Pourth Series. London 
 
 and New York, Macmillan, 1892. 
 Samuel Rawson Gardiner. Constitutional Documents of the Puritan. Revolu- 
 tion, 1628-1660. 2 vols. Oxford, Clarendon Press, 1889. 
 Samuel Rawson Gardiner. Student's History of England. London and 
 
 New York, Longmans, 1895. 
 Franklin Henry Giddings. Democracy and Empire. New York, Macmillan, 
 
 1900. 
 Daniel Coit Gilman. James Monroe. (American Statesmen Series.) Boston, 
 
 Houghton, Mifflin & Co., 1883. 
 ■WiUiam Ewart Gladstone. Gleanings of Past Years. 7 vols. London, John 
 
 Murray; New York, Scribner, 1878. 
 Rudolph von Gneist. History of the English Parliament. London, Clowes ; 
 
 New York, Putnam, 1892. 
 Ulysses Simpson Grant. Personal Memoirs. 2 vols. New York, Charles L. 
 
 Webster & Co., 1886. 
 Horace Greeley. The American Conflict. 2 vols. Hartford, 0. D. Case & 
 
 Co., 18G4-1867. 
 
CUTLER — JOHNS TON 443 
 
 John Richard Green. A Short History of the English People. London, 
 
 Macmillan, 1897. 
 Francois Pierre Guillaume Guizot. The History of Civilisation, from the 
 
 Fall of the Rornan Empire to the French Revolution. (Edited by C. S. 
 
 Henry.) 4 vols. New York, Appleton, 1897. 
 Henry Hallam. The Constitutional History of England, from the Accession 
 
 of Henry VII. to the death of George II. 3 vols. London, 1855. 
 Henry Hallam. View of the State of Europe during the Middle Ages. 2 
 
 vols. New York, 1843. 
 Alexander Hamilton. Works. (Edited by Henry Cabot Lodge.) 9 vols. 
 
 New York, Putnam, 188.5-1886. 
 Hansard's Parliamentary History. See William Cobbett. 
 John Innes Clark Hare. American Constitutional Law, 2 vols. Boston, 
 
 Little, Brown & Co., 1889. 
 Harper's New Monthly Magazine. 100 vols. New York, Harper, 1850- 
 
 1900. 
 Albert Bushnell Hart. Formation of the Union, 1750-1829. New York, 
 
 etc., Longmans, 1896. 
 Albert Bushnell Hart. Introduction to the Study of Federal Government. 
 
 (Harvard Historical Monograph, No. 2.) Boston, Ginn, 1891. 
 Burke Aaron Hinsdale. The Old Northwest. New York, Townsend Mac- 
 
 Coun, 1888. 
 Henry Hitchcock. American State Constitutions : a Study of their Growth. 
 
 New York, Putnam, 1887. 
 George Frisbie Hoar. No Constitutional Power to Conquer Foreign Nations. 
 
 Boston, Dana Estes & Co., 1899. 
 George Frisbie Hoar. Oration delivered at the Celebration of the Centennial of 
 
 the Founding of the Northwest at Marietta, Ohio, April 7, 1888. Washington, 
 
 1888. 
 Hermann von Hoist. The Constitutional and Political History of the United 
 
 States. (Translated by J. J. Lalor and A. B. Mason.) 8 vols. Chicago, 
 
 Callaghan & Co., 1889-1892. 
 James K. Hosmer. Anglo-Saxon Freedom. New York, Scribner, 1890. 
 John Codman Hurd. The Theory of our National Existence. Boston, Little, 
 
 Brown & Co., 1881. 
 Kollin C. Hurd. A Treatise on the Right of Personal Liberty, and the Writ 
 
 of Habeas Carpus. Albany, W. C. Little & Co., 1876. 
 John Alexander Jameson. A Treatise on Constitutional Conventions. 
 
 Chicago, Callaglian & Co., 1887. 
 John Franklin Jameson. Essays in the Constitutional History of the United 
 
 States in the Formative Period. Boston, Houghton, MifHin & Co., 1889. 
 Thomas Jefferson. Writings, being his Autobiography, Correspondence, and 
 
 other Writings. (Edited by H. A. "Washington.) 9 vols. Washington, 
 
 1853-1854. 
 Alexander Johnston. The United States: its History and Constitution. 
 
 New York, Scribner, 1889. 
 
444 AUTHORITIES [App. D 
 
 Journal of the First Congress of the American Colonies. (Edited by Lewis 
 
 Cruger.) New York, E. Winchester, 1845. 
 Journals of Congress. Containing the Proceedings, 1774-1788. 13 vols. 
 
 Publislied by order of Congress, Philadelphia, 1777-1788. 
 Sir 'William Keith. Two Papers on the Subject of Taxing the British Colonies 
 
 in America. London, 1767. 
 "William Edward Hartpole Lecky. History of England in the Eighteenth 
 
 Century. (London, Longmans.) 6 vols. New York, Appleton, 1882. 
 Abraham Lincoln. Complete Works. (Edited by John G. Nicolay and John 
 
 Hay.) 2 vols. New York, Century Co., 1894. 
 George Livermore. An Historical Research respecting the Opinions of the 
 
 Founders of the Republic on Negroes as Slaves. (Massachusetts His- 
 torical Society.) Boston, John Wilson, 1862. 
 Henry Cabot Lodge. George Washington. (American Statesmen Series.) 
 
 2 vols. Boston, Houghton, Miiflin & Co, 1897. 
 Henry Cabot Lodge. The Story of the Revolution. 2 vols. New York, 
 
 Scribner, 1898. 
 John Davis Long. Address before the Home Market Club, February, 1899. 
 
 Boston, Home Market Club, 1899. 
 James Russell Lowell. Prose Works. 5 vols. Boston, Houghton, Mifflin 
 
 & Co., 1892. 
 Thomas Babington Macaulay. Critical, Historical, and Miscellaneous Essays. 
 
 (Loudon and New York, Longmans.) 6 vols. New York, Hurd & 
 
 Houghton, 1866. 
 Thomas Babington Macaulay. History of England. (London and New 
 
 York, Longmans.) 5 vols. Boston, 1849. Also 8 vols. New York, 
 
 Hurd & Houghton, 1866. 
 Samuel W. McCall. Thaddeus Stevens. Boston, etc., Houghton, Mifflin 
 
 & Co., 1899. 
 ■WUliam McKonley, Speech delivered at the Home Market Club, February 16, 
 
 1899. Boston, Home Market Club, 1899. 
 Sir James Mackintosh. History of England. 3 vols. Philadelphia, 1 830- 
 
 1833. 
 Andrew C. McLaughlin. History of the American Nation. New York, 
 
 Appleton, 1899. 
 John Bach McMaster. With the Fathers. New York, Appleton, 1897. 
 James Madison. Letters and other Writings. 4 vols. Philadelphia, Lippin- 
 
 cott, 1865. 
 James Madison. Papers being his Correspondence and Reports of Debates. 
 
 (Edited by Henry D. Gilpin.) 3 vols. Washington, 1840. 
 ■William of Malmesbury. English Chronicle. (Edited by J. A. Giles.) Lon- 
 don, George Bell, 1883. 
 John Marshall. A History of the Colonies planted by the English on the Con- 
 tinent of North America. Philadelphia, 1824. 
 
JOURNAL — REDDA WAY 445 
 
 Sir Thomas Erskme May. Constitutional History of England. (London and 
 
 New York, Longmans.) 2 vols. New York, 1887. 
 Dudley Julius Medley. A Student's Manual of English Constitutional History. 
 
 Oxford, B. H. Blackwell, 1894. 
 Roger B. Merriman. Life of Thomas Cromwell. (MS.) [In the Library of 
 
 Harvard University.] 
 John Torrey Morse, Jr. Abraham Lincoln. (American Statesmen Series.) 
 
 Boston, Houghton, MifHin & Co., 1897. 
 John Torrey Morse, Jr. John Quincy Adams. Boston, Houghton, Mifflin 
 
 & Co., 1882. 
 John Torrey Morse, Jr. Thomas Jefferson. (American Statesmen Series.) 
 
 2 vols. Boston, Houghton, Mifflin & Co., 1897. 
 Blisha Mulford. The Nation : the Foundations of Civil Order and Political 
 
 Life in the United States. New York, Hard & Houghton, 1870. 
 John G. Nicolay and John Hay. Abraham Lincoln : a History. 10 vols. 
 
 New York, Century Co., 1890. 
 Hezekiah Wiles. Principles and Acts of the Revolution in America. (Eeprint.) 
 
 New York, A. S. Barnes & Co., 1876. 
 Hezekiah Wiles. The Weekly Register. 73 vols. Baltimore, 1812-1848. 
 James Otis. The Rights of the British Colonies Asserted and Proved. London, 
 
 1766. 
 The Outlook (weekly). New York, Outlook Co., 1897- 
 Francis Palgrave. The Rise and Progress of the English Commonwealth, 
 
 Anglo-Saxon Period. 2 pts. London, 1832. 
 James Paterson. Commentaries on the Liberty of the Subject and the Laws 
 
 of England relating to the Security of the Person. 2 vols. London, 
 
 Macmillan, 1877. 
 Edward Lilhe Pierce. Memoir and Letters of Charles Sumiier. 2 vols. Bos- 
 ton, Roberts, 1893. 
 Pohtical Science Quarterly. 14 vols. Boston, etc., Ginn, 1886-1899. 
 Sir Frederick Pollock and Frederic William Maitland. History of 
 
 English Law before the Time of Edward I. 2 vols. Cambridge (Eng.), 
 
 University Press; Boston, Little, Brown, & Co., 1895. 
 Thomas Pownall. The Administration of the Colonies. London, 1765. 
 Pulpit and Rostrum. Sermons, Orations, etc. 31 nos. New York, H. H. 
 
 Lloyd, etc., 1858-1866. 
 David Ramsay. Tlie History of the American Revolution. 2 vols. Phila- 
 delphia, 1789. 
 Carman Fitz Randolph. Notes on the Foreign Policy of the United States, 
 
 suggested by the War with Spain. New York, De Vinne Press, 1898. 
 Cjrril Ransome. Advanced History of England. London, Rivingtons ; New 
 
 York, Macmillan, 1896. 
 "William Fiddian Reddaway. The Monroe Doctrine. Cambridge (Eng.), 
 University Press, 1898. 
 
446 AUTHORITIES [App. D 
 
 James Ford Rhodes. History of the United States from the Compromise of 
 1850. 4 vols. New York, Macmillan, 1900. 
 
 James D. Eicliardson, Editor. Messages and Papers of the Presidents, 
 1789-1797. 10 vols. Washington, 1896-1899. 
 
 John Codman Kopes. The Story of the Civil War. 3 vols. New York, 
 Putnam, 1898. 
 
 Christopher St. Germain. Doctor and Student ; or, Dialogues between a 
 Doctor of Divinity and a Student in the Laws of England. London, 1761. 
 
 John T. A. Sanborn. Report of the Decision of the Supreme Court of the 
 United States in the Case of Dred Scott. Washington, 1857. 
 
 James Schouler. Constitutional Studies, State and Federal. 5 vols. New 
 York, Dodd, Mead & Co., 1897. 
 
 James Schouler. History of the United States of America under the Consti- 
 tution. 5 vols. Washington, W. H. Morrison, 1882-1891. 
 
 Carl Sehurz. American Imperialism. (Address before tlie University of 
 Chicago, January 4, 1899.) Boston, Dana Estes & Co., 1899. 
 
 George Spence. The Equitable Jurisdiction of the Court of Chancery. 2 vols. 
 London, 1846-1849. Philadelphia, T. & J. W. Johnson & Co. 
 
 Statutes at Large, y?'o?n Magna Charta, to the End of the Last Parliament, 
 176L 20 vols. (Edited by Owen Ruffhead.) London, 1763-1765. 
 
 Statutes of the Realm, printed by command of His Majesty, King George 
 the Third. 11 vols. London, 1810-1821. 
 
 C. Ellis Stevens. Sources of the Constitution of the United States, consid- 
 ered in relation to Colonial and English History. New York, Macmillan, 
 1894. 
 
 Joseph Story. Commentaries on the Constitution of the United States. Bos- 
 ton, etc., 1833. 
 
 "William Stubbs. The Constitutional History of England. 3 vols. Oxford, 
 Clarendon Press, 1891. 
 
 ■William Stubbs. Select Charters and other Illustrations of English Consti- 
 tutional History. Oxford, Clarendon Press, 1870. 
 
 ■William Graham Sumner. The Conquest of the United States by Spain. 
 Boston, Dana Estes & Co., 1899. 
 
 WilMam Graham Simmer. History of Banking in the United States. 2 vols. 
 New York, Journal of Commerce, 1896. 
 
 Ida M. Tarbell. Life of Abraham Lincoln. 2 vols. New York, McClure, 
 Phillips & Co., 1900. 
 
 Thomas Pitt Taswell-Langmead. English Constitutional History. London, 
 Stevens & Haynes; Boston, Houghton, Mifflin & Co., 1896. 
 
 Hannis Taylor. Origin and Growth of the English Constitution. 2 vols. 
 Boston, Houghton, Mifflin & Co., 1889. 
 
 Francis Newton Thorpe. Constitutional History of the American People. 
 New York, Harper, 1898. 
 
 Reuben Gold Thwaites. The Colonies, 1492-1750. New York, etc., Long- 
 mans, 1897. 
 
RHODES— WOOLSEY 447 
 
 George Fox Tucker. The Monroe Doctrine. Boston, George B. Eeed, 
 1885. 
 
 Josiah Tucker. A Letter from a Merchant in London to his Nephew in North 
 America. London, 1766. 
 
 Robert Walsh. An Appeal from the Judgments of Great Britain respecting 
 the United States of America. Philadelphia, etc., 1819. 
 
 George Wasliington. Writings. (Edited by Jared Sparks.) 12 vols. Bos- 
 ton, 1837. — Also (edited by W. C. Ford) 14 vols. New York, Putnam, 
 1889-1893. 
 
 Daniel Webster. Works. (Edited by Edward Everett.) 6 vols. Boston, 
 1851. 
 
 PelatiaJi Webster. Remarks on a Pamphlet. Printed, 1784. 
 
 Eoger of Wendover. Flowers of History. (Translated by J. A. Giles.) 
 
 2 vols. London, 1849. 
 
 Westel Woodbury Wllloughby. The Supreme Court of the United States, 
 its History and Influence in our Constitutional System. Baltimore, Johns 
 Hopkins Press, 1 890. 
 
 Henry Wilson. History of the Rise and Fall of the Slave Power in America. 
 
 3 vols. Boston, James R. Osgood, 1872-1877. 
 
 Justin Winsor. Narrative and Critical History of America. 8 vols. 
 
 Boston, Houghton, Mifflin & Co., 1887. 
 Theodore S. Woolsey. America's Foreign Policy. New York, Century Co., 
 
 1898. 
 
INDEX 
 
 The names of the authors of documents are in boldface. 
 Small Capitals. The titles of books cited are in italics. 
 
 The titles of documents are in 
 
 ABBEYS, rights of founders, 19. 
 Abbott, Lyman, cited, 414. 
 
 Act of Settlement, text, 138-140 ; 
 contemporary exposition, 140 ; critical 
 comment, 140-141. 
 
 Adams, C. F., cited, 402, 440. 
 
 Adams, G. B., cited, 40. 
 
 Adams, John, on state governments, 
 170 ; Worls, 173, 440 ; on Declaration 
 of Independence, 188-191; Familiar 
 Letters, 191, 440. 
 
 Adams, John Quincy, cited, 253 ; on 
 the Monroe Doctrine, 323; Memoirs, 
 325, 440. 
 
 Adjournment, of Parliament, 86, 92; of 
 colonial legislatures, 184 ; of Congress, 
 247, 248, 255. 
 
 Agreement of the People, text, 79- 
 85; critical comment, 100-114; a con- 
 stitution, 83 ; fundamentals of, 84. 
 
 Aids, imposition of, 13, 14, 44, 67; the 
 three, 13 ; for common benefit, 44. 
 
 Amendments, of Articles of Confedera- 
 tion, 215 ; to the Constitution, 261- 
 264, 37.3-375; how made, 258; limi- 
 tation to, 259; not to be hasty, 295; 
 Coffroth on, 375; Brown on, 376; 
 Blaine on, 376; effect of Fifteenth on 
 Fourteenth, 379. 
 
 America, European control of, 322-326. 
 
 Ameincan Historical Review, 41, 285, 
 440. 
 
 American History Leaflets, 204, 245, 
 373. 
 
 Amnesty, to King Charles' adherents, 
 82. 
 
 Andros, Sir Edmund, in New England, 
 143. 
 
 Anonj'mous, Plain State of the Argu- 
 ment, 145, 440; Proposals for uniting 
 the English Colonies, 147, 440; Amer- 
 ica's Appeal to the Impartial World, 
 150, 440. 
 
 Appointing power, under the Constitu- 
 tion, 255. 
 
 Apportionment, of requisitions, 209; of 
 direct taxes, 245, 251; of representa- 
 tion, 245, 374. 
 
 Arms, right to bear, 125, 261. 
 
 Army, control of, 86, 208, 212, 250 ; ne- 
 groes in, 364-366. — See also Standing 
 Army. 
 
 Articles of Confederation, text, 
 204-216 ; contemporary exposition, 
 216-220; critical comment, 220-226. 
 
 Assizes, 14, 116. 
 
 Atlantic Monthly, 402. 
 
 Attainder, bill of, forbidden, 251, 252. 
 
 Attaint, writ of, 52. 
 
 BAGEHOT, Walter, cited. 31, 101, 
 440. 
 
 Bail, not to be excessive, 125, 168, 262 ; 
 right to, 115-116, 233. 
 
 Bancroft, Frederic, cited, 371, 440. 
 
 Bancroft. George, cited, 240, 440; on 
 Dred Scott decision, 351. 
 
 Bankruptcy, control of, 250. 
 
 Bartholomew de Cotton, on foreign mili- 
 tary service, 45; Historia Anqlicana, 
 45," 441. 
 
 Benevolences, forbidden, 67, 70; ex- 
 acted, 68. 
 
 Benton, Thomas H., on Dred Scott de- 
 cision, 349; Examination of the Dred 
 Scott Case, .351, 440. 
 
 Bill of Rights, text, 122-132; con- 
 temporary exposition, 132; critical 
 comment, 132-137; of Virginia, 166; 
 of Northwest Territory, 233; of the 
 United States, 261. 
 
 Billeting. — See Quartering. 
 
 Bills of credit, of colonies, 147; control 
 of 212, 213, 252. 
 
 Binney, Horace, cited, 309, 440. 
 
450 
 
 INDEX 
 
 Blackstone, Sir William, cited, 54, 118, 
 140,441. 
 
 Blaine, James G., on the reconstruction 
 amendments, 376; Twenty Years of 
 Congress, 380, 441. 
 
 Blyth, Joseph, on Washington's Fare- 
 well Address, 308. 
 
 Bollen, William, Journals of Congress, 
 164. 
 
 Borgeaud, Charles, cited, 111, 176, 441. 
 
 Boston Herald, 399, 401. 
 
 Boutmy, £mile, cited, 39, 441. 
 
 Brown, J. S., ou the Thirteenth Amend- 
 ment, 376. 
 
 Brvce, James, cited, 177, 256, 282, 356, 
 381, 441. 
 
 Burgage, tenure, 17. 
 
 Burgess, J. W., cited, 411. 
 
 Burke, Edmund, cited, 27 ; on taxing 
 colonies, 162; Speech on Conciliation, 
 102; Works, 162, 441. 
 
 Burnet, Gilbert, on Habeas Corpus Act, 
 117: History of His Own Times, 117, 
 132,140,441; on Bill of Rights, 132; 
 on Act of Settlement, 140. 
 
 Burnet, Jacob, cited, 240, 441. 
 
 CANADA, and the Confederation, 214. 
 Capitation tax, to be apportioned 
 
 251. 
 Carlvle, Thomas, Life of Cromwell, 99, 
 
 441. 
 Carpenter, F. B., on the Emancipation 
 
 Proclamation, 366 ; Six Months at the 
 
 White House, 367, 441. 
 Carteret, Lord, letter to, 142. 
 Castle-guard, 16. 
 Census, decennial, 245. 
 Chamberlain, Mellen, cited, 164. 
 Chancery, king's, 51. 
 Channing, Edward, cited, 180, 441. 
 Chaplin, Jeremiah, Words of our Hero, 
 
 366, 441. 
 Charles I., on the Petition of Right, 72; 
 
 Speech, 72 ; amnestj' to his adherents, 
 
 82. 
 Charters, of Henrj- 1., 2; Magna Charta, 
 
 9 ; Confirmatio Chartarum, 43 ; of 
 
 the Forest, 43 ; of New England, lost, 
 
 143, 185 ; recovered, 143 ; rights of 
 
 colonies under, 148, 149. 
 Chase, S. P., cited, 239, 441. 
 Chatham, Earl of. — See Pitt, William. 
 Chief Justice, at impeachment trials, 247. 
 Church, freed, 2, 10; of England, king 
 
 to commune with, 138. — See also 
 
 Religion. 
 Citizens, of other States, rights of, 205, 
 
 257; of the United States, negroes, 
 
 342, 344, 345, 347 ; who are, 346, 347, 
 
 373; protection of, 374; state and 
 national, 343, 347. 
 
 Civil cases, jury trial in, 51, 168, 202. 
 
 Civil rights, ancient, to be respected, 
 13, 15, 128 ; equal protection of, guar- 
 anteed, 374; in colonies, 397. — See 
 also Personal liberty, Property, Re- 
 ligion. 
 
 Civil War, reunion, 358; disabilities 
 resulting from, 374; debt honored, 
 374 ; Southern debt repudiated, 375. 
 
 Cleveland, Grover, cited, 334. 
 
 Cobbett, William, Parliamentary His- 
 tory of England, 72, 79, 85, 441. 
 
 Coffin, C. C, 'cited, 441. 
 
 Coffroth, A. H., on Thirteenth Amend- 
 ment, 375. 
 
 Coke, Sir Edward, cited, 27. 
 
 Colonies, New England charters, 143, 
 185 ; defended, 144 ; charges against, 
 144; control of, 144, 146, 101,163; union 
 advised, 146 ; rights of legislation, 
 146; claim Magna Charta and rights 
 of British subjects, 144, 147, 149, 156, 
 100; charter rights of, 142-150; taxa- 
 tion and representation, 156, 159, 160, 
 161, 162 ; grants by, 159, 162 ; peti- 
 tion Parliament, 164 ; grievances of, 
 184. — See also Cuba, Philippines, 
 Porto Rico. 
 
 Commander-in-chief, 213 ; the president, 
 255. 
 
 Commerce, colonial, cut off, 185 ; con- 
 trol of, 207, 209, 250 ; uniform regu- 
 lation of, 252 ; policy of the United 
 States, 303. 
 
 Commissioners for Ecclesiastical Causes, 
 illegal, 125. 
 
 Common pleas, court of, to be station- 
 ary, 14. 
 
 Common tribute, forbidden, 3. 
 
 Commonwealth of England, government 
 of, 85. — See also Council of State, 
 Parliament, Lord Protector. 
 
 Confederation, Articles of, 204-216 ; ob- 
 jects of, 205; limitations of power of 
 states in, 207; committee of the states, 
 212,214; to be perpetual and supreme, 
 215; amendment of, 215; ratification 
 of, 215 ; Northwest Territory a part 
 of, 234. — See also Congress of the 
 Confederation. 
 
 CONFIKMATIO Chartarum, text, 43- 
 45 ; contemporarv exposition, 45 ; 
 critical comment, 45-48. 
 
 Congress of the Confederation, 
 organization, 206, 213: votes in, 207; 
 immunities of members, 207 ; powers 
 of, 209-214 ; majority in, 213 ; North- 
 west Ordinance, 228-236 ; territo- 
 rial delegate to, 233. 
 
INDEX 
 
 451 
 
 Congress, Continental, instructions 
 to agents, 164 ; advises formation of 
 state governments, 172, 173; Decla- 
 ration of Independknck, 183-188; 
 Articles of Confederation, 204- 
 216. 
 
 Congress of the United States, organi- 
 zation, 245; elections, 245-247 ; ses- 
 sions, 247, 255; quorum, 247 ; control 
 over members, 247, 248; journals, 248 ; 
 adjournment, 247, 248, 255; compen- 
 sation, 248; immunities, 248; j'eas 
 and nays in, 248; members not eligi- 
 ble to "office, 248 ; procedure of bills, 
 249 ; powers of, 249-251. 257, 258, 373- 
 375; limitations, 251-252, 254, 261- 
 263; interpretation of powers of, 313; 
 responsible for government of colo- 
 nies, 394, 398. — See also House of 
 Representatives, Senate. 
 
 Congressional Globe, 365, 366, 376,441. 
 
 Congressional Sccord, 392, 441. 
 
 Constitution, defined, 148. 
 
 Constitution of the United States, 
 text, 245-264,373-375; contemporary 
 exposition, 264-273; critical comment, 
 273-283; why ordained, 245; how 
 amended, 258; amendments to, 261- 
 264, 373-375 ; supreme law, 259, 315 ; 
 when established, 260 ; Washington 
 on, 294 ; implied powers of, 313; ne- 
 groes not citizens under, 342, 344, 
 345; interpretation of, 343, 344 ; 
 slavery under, 345, 350 ; does not ex- 
 tend to territories, 349 ; and equal- 
 itv, 352. — See also Congress, United 
 States. 
 
 Contenement, 15, 145. 
 
 Contracts, obligations of, not to be im- 
 paired, 234, 252. 
 
 Cooley, T. M., cited, 276, 381, 441. 
 
 Copyrights and patents, laws for, 250. 
 
 Coronation Oath and Charter of 
 Henry I., text, 1-5 ; contemporary 
 exposition, 5-6 ; critical comment, 
 6-8. 
 
 Cotton. — See Bartholomew. 
 
 Council of State, appointment of, 81, 85, 
 92, 93; powers of, 81, 94, 95; term, 
 81 ; trial of, 92; to take oath, 97. 
 
 Courts, for trials upon certain writs, 14; 
 common pleas to be stationary, 14; 
 pleas of the crown, 15; forest, 19; 
 illegal, 124,125; of the Confederation, 
 210; of Northwest Territory, 229; 
 Congress to establish inferior, 250; of 
 the United States, 256; jurisdiction of, 
 256, 263 ; procedure in, 257, 262. 
 
 Coxe, Tench, on the Constitution, 271. 
 
 Cravens, J. A., on the Emancipation 
 Proclamation, 364. 
 
 Creasy, E. S., cited, 74, 118, 441. 
 
 Criminal Cases. — See Jury. 
 
 Cromwell, Oliver, Lord Protector, 95 ; 
 on Instrument of Government, 98. 
 
 Cromwell, Thomas, on Parliament, 35- 
 37. 
 
 Crown, election to, 2, 5, 6; interference 
 in parliamentarj"- elections, 36, 124; 
 prerogative of, 72, 125, 144; conferred 
 bv Parliament, 126, 129; succession 
 fixed, 127, 129, 130; king to commune 
 with Church of England, 138; restric- 
 tions on king's movements, 139; de- 
 fence of foreign dominions of, 139; 
 and colonies, 145, 149, 156-157, 184- 
 186. 
 
 Cuba, condition of, 389; independence 
 recognized, 390; United States and, 
 390-394. 
 
 Curtis, Benjamin R., dissent from Dred 
 Scott decision, 346, 441. 
 
 Curtis, G. T., cited, 174,441. 
 
 Custom duties, control of, 44, 249, 251, 
 252. 
 
 Cutler, W. P. and J. P., Life of Rev. 
 Manasseh Cutler, 238, 442 ; cited, 242. 
 
 DANA, R. H., cited, 329, 442. 
 Dane, Nathan, on Northwest Or- 
 dinance, 237. 
 
 Darrein presentment, trial upon writ of, 
 14. 
 
 Declaration of Independence, text, 
 183-188; contemporar}' exposition, 
 188-192 ; critical comment, 192-203. 
 
 Declaration of Rights, text, 166- 
 169; contemporary' exposition, 169- 
 173; critical comments, 173-181. 
 
 Declaration of Rights and Griev- 
 ances OF the Colonists in Amer- 
 ica, text, 155-157; contemporary ex- 
 position, 158-164 ; critical comment, 
 164-166. 
 
 Defence of the New-England 
 Charters, text, 142-144; contem- 
 porary exposition, 144-150; critical 
 comment, 150-154. 
 
 Delegated powers, 205, 263. 
 
 Delegates, to Congress of Confederation, 
 206; territorial'; 2-33. 
 
 Despotism, from political partisanship, 
 296. 
 
 Dicey, A. V., cited, 120, 141, 442. 
 
 Dickinson, John, on the Constitution, 
 271. 
 
 Direct taxes, to be apportioned, 245, 
 251. 
 
 Dispensation of laws, 125, 168; forbid- 
 den, 131; exceptions, 131. 
 
 District of Columbia, control of, 251. 
 
452 
 
 INDEX 
 
 Dower, 3, 12; preference to widow's 
 
 right of, 13. 
 Deed Scott Decision, text, 340-349; 
 
 contemporary exposition, 349-353 ; 
 
 critical comment, 354-357; statement 
 
 of the case, 341; dissent, 346. 
 Dummer, Jeremiah, Defence of 
 
 THE New-England Charters, 142- 
 
 144, 442. 
 Dunning, W. A., cited, 369, 382, 442. 
 
 THDINBUEGH REVIEW, 73,164, 
 
 -^ 442, 
 
 Education, fostered, 234; and govern- 
 ment, 299; in colonies, 397. 
 
 Edward the Confessor, his laws restored, 
 4, 6, 25. 
 
 Edward I., Summons to Parlia- 
 ment, 34-35; Confirmatio Char- 
 TAKUM, 43-45. 
 
 Elections, for parliament, 36, 80, 87-90 ; 
 freedom of, 84,124, 125, 167; judge 
 of legislative, 91, 247 ; congressional, 
 206, 245-247; presidential, 253-254, 
 263-264. — See also Suffrage. 
 
 Electors of president, 253, 374; legisla- 
 tors and officials not to be, 253. 
 
 Ellis, G.E., cited, 200. 
 
 Emancipation, compensated, recom- 
 mended, 359, 361. — See also Procla- 
 mation. 
 
 Eminent domain, exercise of right of, 
 234, 262. 
 
 Equality, natural, 166, 183; Constitu- 
 tion ijiased upon, 352. 
 
 Escheat, service of an, 18. 
 
 Eulogies and Orations on Washington, 
 307, 308, 309. 
 
 Excise, control of, 249 ; to be uniform, 
 249. 
 
 Executive power, in the Commonwealth, 
 81, 85; in the United States, 253; 
 duty of heads of departments, 255. 
 — See also Lord Protector, President. 
 
 Expenditures, regulation of, 93, 252. 
 
 Export duties, forbidden, 251, 252. 
 
 Ex post facto laws, forbidden, 251, 252. 
 
 -piEDERALIST, 268. 
 ••*- Fee-farm, tenure, 17. 
 Feilden, H. St. C, cited, 47, 442. 
 Fifteenth Amendment, text, 375; 
 
 contemporary exposition, 376-380; 
 
 critical comment, 380-387. 
 Fines, not to be arbitrary or excessive, 
 
 4, 15, 126, 168,233, 262"; liow assessed, 
 
 15; John to give up unjust, 21; illegal 
 
 to grant future, 126. 
 Fisher, S. G., cited, 178, 226, 442. 
 
 Fiske, John, cited, 202, 225, 442. 
 
 Ford, H. J., cited, 225, 442. 
 
 Ford, P. L., Pamphlets on the Constitu- 
 tion, 267, 271, 272, 442. 
 
 Foreign relations, power over, 86, 207, 
 209, 255, 256; alliances to be avoided, 
 301, 303 ; policv of the United States, 
 300-305, 322-326, 401. 
 
 Foreigners, removed, 19, 20; not eli- 
 gible to office, 139. 
 
 Forest, king's, retained, 4; reduced, 19 ; 
 court, attendance at, 19; abatement 
 of evil customs, 19 ; charter confirmed, 
 43. 
 
 Forster, John, 442. 
 
 Forsyth, William, cited, 57, 442. 
 
 Fortescue, Sir John, on civil procedure, 
 51; De Laudibus Legum Anglice, 54, 
 442. 
 
 Fourteenth Amendment, text, 373- 
 375; contemporary exposition, 376- 
 380; critical comment, 380-387. 
 
 Franklin, Benjamin, on Stamp Act, 158; 
 Political, Miscellaneous, and Philo- 
 sophical Pieces, lb9 ; on the Constitu- 
 tion, 264. 
 
 Freedom, of the press, 168; of speech, 
 126, 207, 261. 
 
 Freeman, Edward, cited, 39, 442. 
 
 Freeman's Journal, on banks in 1819, 
 317. 
 
 Free tenants, in chief, to be summoned to 
 council, 13; aids from, 14; services 
 of, 14. 
 
 Fugitives, from justice, 206, 257; from 
 labor, 258, 360, 361. — See also Slav- 
 ery. 
 
 GARDINER, S. R., cited, 8, 32, 40, 
 76, 104, 442. 
 
 General Council, to impose aids, 13; 
 how summoned, 13; organization, 13. 
 — See also Parliament. 
 
 General warrants, 168, 188, 261. 
 
 General welfare, power to tax for, 249. 
 
 George III., and colonies, 157, 184. 
 
 Giddings, F. H., cited, 421, 442. 
 
 Oilman, D. C, cited, 331, 442. 
 
 Gilpin, H. D., Madison Papers, 267. 
 
 Gladstone, W. E., cited, 275, 442. 
 
 Gneist, Rudolf von, cited, 32, 47, 76, 
 442. 
 
 Government, object of, 167, 183; best 
 form, 167 ; right to change, 167, 183, 
 294; uniform, 169; preservation, 169, 
 290-304; obedience to, 294 ; necessitv 
 of an efficient, 294, 295; stability, 
 295; separation of powers, 297; re- 
 ligion, moralitj', and, 298; education 
 and, 299. — See also Constitution, 
 
INDEX 
 
 453 
 
 Republican government, United 
 States. 
 
 Governor of territory, appointment, 229 ; 
 qualifications, 229 ; duties, 230, 232 ; 
 veto, 232. 
 
 Grant, U. S., on negro soldiers, 366; 
 General Order, 366, 442. 
 
 Grants, colonial, 159, 162. 
 
 Great Seal, power of, 51. 
 
 Greeley, Horace, on Dred Scott decision, 
 352; American Confiict, 353, 442. 
 
 Green, J. R., cited, 7, 22, 29, 59, 101, 
 104, 134, 197, 443. 
 
 Guaranty, of immunities of citizens, 
 257; of republican form of govern- 
 ment, 258; of public debt, 214, 259, 
 375; of equal protection of the laws, 
 374. 
 
 Guizot, F. P. G., cited, 133, 443. 
 
 HABEAS CORPUS, forerunner of, 
 17; evaded, 69; act, 115-117, 431- 
 439; in territories, 233; suspension of, 
 251. 
 
 Habeas Corpus Act, text, 115-117, 
 431-439 ; contemporary exposition, 
 117; critical comment, 118-121. 
 
 Hallam, Henrv, cited, 6, 27, 37, 45, 72. 
 100, 443. 
 
 Hansard. — See Cobbett. 
 
 Hamilton, Alexander, on the Con- 
 federation, 219; Works. 219, 269, 443; 
 on the Constitution, 267, 268. 
 
 Hare, .J. I. C, cited, 319, 443. 
 
 Harper^s Mayazine, 339, 414, 443. 
 
 Hart, A. B., cited, 224, 280, 338, 386, 
 412, 443. 
 
 Henry I., Coronation Oath and 
 Charter, 1-5; William of Malmes- 
 bury on, 5; Roger of Wendover on, 6. 
 
 Hinsdale, B. A., cited, 241, 443. 
 
 Hitchcock, Henrv, cited, 173, 443. 
 
 Hoar, G. F., cited, 240, 408, 443. 
 
 Hoist, H. E. von, cited, 198, 223, 329, 
 354, 443. 
 
 Hosmer, J. K. cited, 38, 77, 109, 135, 
 443. 
 
 House of Representatives, apportion- 
 ment, 245, 374 ; election to, 245-247; 
 qualifications, 245, 374 ; number in, 
 246 ; powers of, 246, 247, 248, 253, 
 264. — See also Congress. 
 
 Howard's Reports, 340. 
 
 Hurd, J. C, cited, 278. 443. 
 
 Hurd, R. C, cited, 118, 443. 
 
 [MMUNITIES, of legislators, 69, 126, 
 L 207, 248; of citizens guaranteed, 
 257, 374. 
 
 Impeachment, pardon not pleadable to, 
 
 140, 255 ; in United States, 246, 247, 
 
 255, 256. 
 Implied powers, 251, 313. 
 Imposts, control of, 249, 252; uniformity, 
 
 249. 
 Impressment, 186. 
 Inalienable rights, 148, 166, 183, 
 Independence, declared, 187; forced by 
 
 the people, 191. 
 Indians, in Revolution, 186; trade, 211, 
 
 250; treatment of, 234; not taxed, 
 
 245. 
 Inquest. — See Jurj'. 
 Inquisition of life or limb, writ of, 17. 
 
 — See also Habeas Corpus. 
 Instrument of Government, text, 
 
 85-98; contemporary exposition, 98- 
 
 99; critical comment, 100-114. 
 Insurrections, suppression of, 258. 
 Invasion, protection against, 258. 
 
 JAMES II., arraigned, 323 ; abdicated, 
 124, 129. 
 
 Jameson, J. A., cited, 174, 221, 443. 
 
 Jameson, J. F., 280, 443. 
 
 Jefferson, Thomas, on Declaration of In- 
 dependence, 192; Works, 192, 220, 
 273, 326, 443; on the Confederation, 
 219; on the Constitution, 272; on the 
 Monroe Doctrine, 325. 
 
 Jews, regulation of debts due, 12, 13. 
 
 John, Magna Chart a, 9-25; prom- 
 ises restorations, 20, 21; enforcement 
 of Magna Charta on, 22. 
 
 Johnston, Alexander, cited, 367, 443. 
 
 Journal of First Congress, 155, 444; 
 legislative, 214, 248 ; Journals of Con- 
 gress, 164, 228, 444. 
 
 Judges, commission, 139, 256; salaries, 
 139,256; removal, 139; independence, 
 171, 172, 185. 
 
 Judicial power of the United States, 
 how vested, 256. — See also Courts. 
 
 Jurors, qualifications, 51-52, 126'; pen- 
 altv for false verdict, 53; treatment, 
 54;- return, 126. 
 
 Jurv, trial bv, for embezzling a record, 
 51; in civil cases, 51, 168, 262; ad- 
 vantages of, 53; abuse, 124; right of 
 colonies to, 156, 185 ; in criminal cases, 
 168, 262, 897; in territories, 233; in 
 United States courts, 257, 262. — See 
 also Jurors. 
 
 Justiciaries, 14. 
 
 KEITH, Sir William, on colonial 
 rights, 160; Taxing the British 
 Colonists, 161, 444. 
 
454 
 
 INDEX 
 
 King. — See Crown. 
 King's Bencli, illegal use, 124. 
 Knight's fee, regulated, 4, 14; priority 
 of, 17. 
 
 LAND, seizure for debt, 12; of felons, 
 16. — See also Property. 
 
 Laws, paramount, 18, 19, 68, 69, 71, 82, 
 168, 234; faithful execution of, 256; 
 Constitution the supreme, 259; due 
 process, 262, 374; not violated by 
 Missouri Compromise, 349; equal 
 protection guaranteed, 374. 
 
 La}' tenement, 15. 
 
 Lecky, W. E. H., cited, 199, 444. 
 
 Legislative power, how vested, in Com- 
 monwealth, 85, 94; in the United 
 States, 245. — See also Congress, 
 Northwest Territory, Parliament. 
 
 Legislative punishments, forbidden, 82, 
 251, 252. 
 
 Lincoln, Abraham, Peoclamation 
 OF Emancipation, 358-364 ; Com- 
 plete Worhs, 358, 3G2, 444; on Eman- 
 cipation Proclamation, 366, 367. 
 
 Livermore, George, cited, 197. 444. 
 
 Loans, forced, forbidden, 67; exacted, 
 68. 
 
 Lodge, H. C, cited, 202, 416, 444. 
 
 London, aids, 13; ancient liberties, 13; 
 gives up charter, 143. 
 
 Long, J. D., on duty to dependencies, 
 399; Address before the Home Market 
 Club, 401, 444. 
 
 Lord Protector, chief magistrate, 85; 
 assisted by council, 85; writs in his 
 name, 85;" powers, 86, 92, 94; succes- 
 sion, 95; Oliver Cromwell first, 95; 
 to take oath, 97. 
 
 Lowell, J. E., cited, 380, 444. 
 
 Luffman, J., cited, 132. 
 
 MACAULAY, T. B., cited, 46, 74, 
 100, 133, 164, 444. 
 
 McCall, S. W., cited, 370, 444. 
 
 McCuLLOCH VS. The State of Mary- 
 land, text, 312-316; contemporary 
 exposition, 316-318 ; critical comment, 
 318-320. 
 
 McKinley, William, Annual Mes- 
 sages, 388-397 ; on war with Spain, 
 388-391, 398; on relation with Cuba, 
 390-394; on duty to dependencies, 
 391, 394-399; Speech at the Home 
 Market Club, 399, 444. 
 
 Mackintosh, Sir James, cited, 28, 444. 
 
 McLaughlin, A. C, cited, 284, 384-, 
 444. 
 
 McMaster, J. B., cited, 337, 444. 
 
 Madison, James, on Monroe Doctrine, 
 326 ; Works, 327, 444. 
 
 Magna Chakta, text, 9-25; contem- 
 porary exposition, 25-26; critical 
 comment, 27-33 ; enforcement, 22 ; 
 confirmed, 43; pleadable, 43; para- 
 mount law, 43; read in churches, 43; 
 penalty for breaking, 43; in Petition 
 of Right, 68, 69 ; claimed by colonists, 
 144, 147, 159. 
 
 Maletote of wools, released, 44. 
 
 Malmesbury, William of, 5, 444. 
 
 Manors, in king's demesne, rent of, 15. 
 
 Marque and reprisal, control of letters, 
 207, 209, 213, 250, 252. 
 
 Marriage, freedom, 2, 3. 
 
 Marshall, John, cited, 152, 444; deliv- 
 ers McCuiloch vs. Maryland decision, 
 312. 
 
 Martial law, in time of peace, 69, 70; 
 revoked, 71 ; in United States, 262. 
 
 Mason, George, on the Constitution, 267. 
 
 Mason, J. M., on Washington's Fare- 
 well Address, 308. 
 
 May, Sir T. E., cited, 120, 445. 
 
 Measures. — See Weights. 
 
 Medley, D. J., cited, 113, 445. 
 
 Merchants, security and freedom of 
 transit, 18. 
 
 Merriman, R. B., Life of Thomas Crom- 
 well, 36, 445. 
 
 Message, the president's, 255. 
 
 Military service, abroad, 45, 81: im- 
 pressment of colonists, 186. 
 
 Militia, of Commonwealth, 82; a safe- 
 guard, 168, 208, 261; control of, 250. 
 
 Mi not, G. R., on Washington's Farewell 
 Address, 308. 
 
 Missouri Compromise, unconstitutional, 
 345; and rights of property, 345, 349. 
 
 Monev, regulation and coinage, 211, 
 213^250, 252; power to borrow, 212, 
 213, 250; counterfeiting, 250. 
 
 Monroe, James, Monkoe Doctrine, 
 321-323. 
 
 Monroe Doctrine, text, 321-323; 
 contemporary exposition, 323-328 ; 
 critical comment, 329-339. 
 
 Moralitj' and government, 298-299. 
 
 Morse, J. T., cited, 330, 370, 445. 
 
 Morte d'Ancestor, trial upon writ of, 14. 
 
 Mulford, Elisha, cited, 221, 445. 
 
 NATURALIZATION, obstruction of, 
 184; control of, 250. 
 Navv, under the Commonwealth, 86, 93 ; 
 
 control of, 207, 212, 250. 
 Negroes, citizenship, 342, 347, 373; in- 
 ferior race, 343; soldiers, 364, 366; 
 suffrage, 375, 379. 
 
INDEX 
 
 455 
 
 Nicolay, J. G., and Hay, J., cited, 368, 
 445. 
 
 Niles, Hezekiah, on McCulloch vs. 
 Maryland, 316; M/es' Weekly Reg- 
 ister, 317, 318, 445. 
 
 Nobility, titles forbidden, 207, 252. 
 
 Northwest Ordinance, text, 228- 
 236 ; contemporary exposition 237- 
 238; critical comnient, 238-243. 
 
 Northwest Territory, property in, 228; 
 government, 229-233; future state- 
 hood, 233, 235, 236; compact with, 
 233; bill of rights, 233; part of the 
 Confederation, 234; control of public 
 domain, 235 ; free waterways, 235 ; 
 slavery, 236. 
 
 Novel disseisin, trial upon writ of, 14. 
 
 Nugent, Lord, cited, 72. 
 
 OATH, of Lord Protector, 97; pre- 
 scribed by Parliament, 127; coro- 
 nation, 1, 130; of territorial officers, 
 232; of president, 254; to support the 
 Constitution, 259. 
 
 Oificers, obedience to the laws, 19, 71; 
 responsible to the people, 167; posi- 
 tions not hereditary, 167 ; rotation, 
 167; legislators not eligible, 248, 253; 
 foreign favors, 252; appointment, 255; 
 commission, 256; impeachable, 256; 
 oath, 259; religious test, 259; disa- 
 bilities from Civil War, 374. 
 
 Olney, PJchard, cited, 310, 334; on the 
 Philippines, 401; Growth of our For- 
 eign Policy, 402. 
 
 Otis, James, on colonial rights, 159; 
 Rights of the British Colonies, 160, 
 445. 
 
 Outlook, 416, 445. 
 
 Oyer and terminer, sessions of, 116. 
 
 PAINE, Thomas, on Washington's 
 Farewell Address, 307. 
 
 Palgrave, Sir James, cited, 27, 445. 
 
 Pardon, to murderers, 4; power of Lord 
 Protector, 86, 93; not pleadable to 
 impeachment, 140, 255; presidential 
 power, 255. 
 
 Parliament of England, germ of, 13; 
 summons to, 34, 87-92; qualification 
 of members, 35, 90, 91. 139; powers 
 of, 35, 36, 81-84, 86, 92, 94-96, 125- 
 126; limitations, 81-84, 92; elections 
 to, 36, 80, 84, 87-92, 124-125 ; Stat- 
 ute, 8 Henry VI. Cap. 12, 49-51; 
 Petition of Right, 67-71; Rump, 
 to dissolve, 79, 84; number of mem- 
 bers of, 80, 87; apportionment, 80, 87; 
 quorum, 80, 91; term, 81, 84,86; ex- 
 
 tra, 81, 91-92 ; sessions, 79, 81, 86, 92, 
 126; adjournment, 86, 92; resistance 
 inarms to, 84; Habeas Corpus Act, 
 115-117, 431-439; Bill of Rights, 
 122-132; arraigns James 11,123-124; 
 the Convention, 124; freedom of 
 speech in, 126 ; claims certain rights, 
 126; confers the crown, 126, 129; 
 fixes the succession, 127, 129-130; 
 prescribes oath of allegiance and su- 
 premacy, 127; anti-Papist accession 
 oath, 131; Act of Settlement, 
 138-140; foreigners excluded from, 
 139; and colonies, 144-146, 158-163, 
 185; colonial representation in, 156, 
 160-161; colonial opinion of, 158; col- 
 onies petition, 164 ; arraigned, 185. 
 — See also General Council. 
 
 Patents, laws for, 250. 
 
 Paterson, James, cited, 119, 445. 
 
 Peace and war, power, 86, 92, 208, 209, 
 213, 250, 252. 
 
 People, rights of, 4, 128 ; source of 
 power, 167, 183; responsibility to, 
 167 ; force independence, 191 ; re- 
 served power, 263, 294. 
 
 Personal libertj', security of, 17, 18, 70, 
 125, 168, 261-262, 374,'' 397; violated, 
 68-69, 123, 185. — See also Bail, Civil 
 Rights, Fines, Habeas Corpus, Jurj', 
 Punishments, Petition. 
 
 Petition, right of, 125, 261; colonists 
 claim, 157. 
 
 Petition of Right, text, 67-71 ; con- 
 temporary exposition, 72; critical 
 comment, 72-77. 
 
 Petty serjeanty, tenure, 17. 
 
 Philippines, ceded, 392; Congress re- 
 sponsible for government, 394, 395; 
 duty of United^ States, 394, 398-401; 
 future development, 395; education, 
 397; civil rights, 397; effect on for- 
 eign policy of United States, 401. 
 
 Pierce, E. L., cited, 369, 445. 
 
 Piracy, laws against, 209, 250. 
 
 Pitt, William, on reconciling the col- 
 onies, 163; Speech in the House of 
 Lords. 163. 
 
 Pleas of the crown, minor officials not 
 to hold, 15. 
 
 Political partisanship, dangers, 296. 
 
 Political Science Quarterly, 411, 445. 
 
 Pollock and Maitland, cited, 7, 32, 445. 
 
 Porto Rico, military government, 392; 
 civil government, 396; local self-gov- 
 ernment, 396; education, 397; civil 
 rights, 397. 
 
 Post-office, control, 212, 250. 
 
 Pownall, Thomas, on colonial rights, 
 147; Administration of the Colonies, 
 148, 445, 
 
456 
 
 INDEX 
 
 Prrecipe, writ, forbidden, 17. 
 
 Pramunire, penaltA' incurred, 117. 
 
 Precedent, fear of "illegal, 71, 126. 
 
 Prerogative, royal, 72, 125, 144. 
 
 President, veto", 249; term, 253; elec- 
 tion, 253,263; qualifications, 254; re- 
 muneration, 254; succession, 254; oath, 
 254 ; duties and powers, 255-256 ; im- 
 peachment, 247, 256; war powers, 
 363. 
 
 Preston, H. W., Documents, 166. 
 
 Privy Council, illegal use, 68; duties, 
 139; restriction on membership, 139. 
 
 Prize courts, control of, 209, 250. 
 
 Proclamation of Emancipation, 
 text, 358-364; contemporary exposi- 
 tion, 364-367 ; critical comment, 367- 
 372; constitutional basis, 363, 364; 
 results, 364; call for, 365 ; Lincoln on, 
 366, 367. 
 
 Property, disposition of personal, 4, 16; 
 Seizure for debt, 12 ; protection of, 16, 
 83, 166, 234, 261-262, 374 ; in North- 
 west territorj', 228 ; in slaves, 345 ; 
 rights and Missouri Compromise, 345, 
 349. 
 
 Public debt, assumed and faith pledged, 
 234, 259; unquestioned, 374; South- 
 ern, repudiated, 375. — See also Public 
 faith. 
 
 Public domain, in Northwest Territory, 
 235; control of, 251, 258. 
 
 Public faith and credit, to be kept, 82, 
 97, 214, 259, 299. 
 
 Pulpit and Rostrum, 352, 445. 
 
 Punishments, not to be cruel or unusual, 
 126, 168, 233, 262. 
 
 QUARTERING troops, 69-70, 185, 
 261. 
 Quorum, of Parliament, 80, 91; of Con- 
 gress, 247. 
 Quo warranto, writ, against Massachu- 
 setts' charter, 143. 
 
 RAMSAY, David, on Declaration 
 of Independence, 191; American 
 
 Revolution, 191, 445. 
 Randolph, C. F., cited, 403, 445. 
 Ransome, Cyril, cited, 8, 32, 39, 112, 
 
 136, 141, 445. 
 Reconstruction amendments, 373-375; 
 
 contemporarj'- exposition, 375-380; 
 
 critical comment, 380-387. 
 Records, legal, amendment, 49-50; 
 
 felony to embezzle, 51; power of 
 
 Great Seal, 51; of states, faith and 
 
 credit to, 206, 257. 
 Reddaway, W. F., cited, 337, 445. 
 
 ■Reliefs, to be just, 2, 3; ancient, re- 
 stored and specified, 11; of an escheat, 
 18. 
 
 Religion, state, 83. 96 ; freedom, 83, 96, 
 169, 233, 259, 261 ; restrictions, 83, 84, 
 86; morality, government, and, 298. 
 
 Rejwrt on the JJiyniiy of a Peer, 84. 
 
 Representation, right of, 79, 168, 184, 
 185, 233. — See also Taxation. 
 
 Representative, Parliament, 80. 
 
 Republican government, guaranteed, 
 236, 258 ; military establishments hos- 
 tile to, 292; separation of powers, 297; 
 foreign influence on, 302. — See also 
 Government, United States. 
 
 Requisition, of criminals, 206, 257 ; on 
 states, 209, 212. 
 
 Revenue, control of, under Commot- 
 wealth, 93, 94; raised by prerogativ 
 125; control of bills in Congress, 248. 
 — See also Benevolences, Taxation. 
 
 Rhodes, J. F., cited, 356, 446. 
 
 Richardson, J. D., Compilation of Mes- 
 sages, 321, 388, 446. 
 
 Roger of Wendover, on Henry I., 6 ; 
 Flowers of History, 6, 26, 447; on 
 Magna Charta, 25. 
 
 Roman Catholics, not to bear arms, 125; 
 excluded from the crown, 130. — See 
 also Church, Religion. 
 
 Ropes, J. C, 446. 
 
 SAINT-GERMAN, Chkistopher, on 
 treatment of jurors, 54; Doctor and 
 Student, 54, 446. 
 
 Sanborn, J. T. A., 446. 
 
 Schouler, James, cited, 178, 332, 354, 
 446. 
 
 Schurz, Carl, cited, 406, 446. 
 
 Scots, king of, an English vassal, 22. 
 
 Scutages, to be laid bv General Council, 
 13. 
 
 Sectionalism, dangers to the Union, 293. 
 
 Senate, elections, 246, 247; equal state 
 representation, 246 ; term, 246 ; organ- 
 ization, 246, 247; qualifications, 246, 
 374; presiding officer, 247; powers, 
 247, 248, 254, 255, 264. — See also 
 Congress. 
 
 Separation of powers, 81, 167, 171, 172, 
 207, 248, 297. 
 
 Services, lawful, 14 ; militarj% abroad, 
 45 ; public, regulation, 167. 
 
 Sewall, J. M., on Washington's Farewell 
 Address, 306. 
 
 Slaver_v, refei-ence struck from Declara- 
 tion of Independence, 192; in terri- 
 tories, 236, 345; representation, 245; 
 fugitive slaves, 258, 360-361; under 
 the Constitution, 350; compensated 
 
INDEX 
 
 457 
 
 emancipation, 359, 361 ; slaves in rebel 
 states emancipated, 359-364 ; abol- 
 ished, 373. — See also Negroes, Slave 
 trade. 
 
 Slave trade, regulation, 251. 
 
 Smith, E. P., cited, 279. 
 
 Socage, tenure, 17. 
 
 Sovereignty, state and national, 205, 
 215, 259, 315, 317. 
 
 Spain, war with United States, 388- 
 391; peace, 392, 398. 
 
 Sparks, Jared, cited, 309. 
 
 Speaker, House to choose, 246. 
 
 Spence, George, cited, 56, 446. 
 
 Stamp Act, subverts rights of colonies, 
 156; burdensome, 157; Franklin on, 
 158. — See also Colonies. 
 
 Stamp-Act Congress, Declaration 
 
 - OF Rights and Grievances of 
 THE Colonists in America, 155- 
 157. 
 
 Standing armv, of Commonwealth, 93 ; 
 illegal, 125;" dangers, 169, 292; and 
 civil power, 84, 169, 185; kept in col- 
 onies, 185j forbidden, 208, 252. 
 
 States, advised to form governments, 
 171-173; residual powers in, 205,263; 
 equal vote in Confederation, 207; in 
 Senate, 246, 259; limitation of powers, 
 207-208,252, 314-315,374-375 ; militia, 
 208, 250; requisitions on, 209, 212; 
 disputes between, settlement under 
 Confederation, 210 ; new, 235-236, 258 ; 
 national protection of, 258 ; suits 
 against, 263 ; no control over federal 
 powers, 315; sovereigntv, 205, 259, 
 315, 317; citizenship, 343', 373. 
 
 Statute, 8 Henry VI., Cap. 12, 
 text, 49-51 ; contemporary exposition, 
 51-54; critical comment, 54-65. 
 
 Statutes at Large, 49, 446. 
 
 Statutes of the Realm, 2, 9, 43, 67, 115, 
 122, 138, 446. 
 
 Statutum de Tallagio non concedendo, 
 claimed, 67. 
 
 Stevens, C. E., cited, 65, 136, 225, 281, 
 446. 
 
 Storv, Joseph, cited, 197, 220, 274, 318, 
 446. 
 
 Stubbs, William, Select Charters, 1, 
 67 ; cited, 7, 29, 38, 46, 446. 
 
 Suffrage, qualifications, 89-90, 167; in 
 the United States, 375. — See also 
 Elections. 
 
 Summons to Parliament, text, 34-35; 
 contemporary exposition, 35-37; criti- 
 cal comment, 37-41. 
 
 Sumner, W. G., cited, 319, 404, 446. 
 
 Supreme Court, jurisdiction, 256 ; 
 McCuLLOCH vs. Maryland, 312-316 ; 
 to interpret Constitution, 313-316, 
 
 343-344; Dred Scott Decision, 
 340-349. 
 Sureties, when liable, 12. 
 
 TALLAGE, and representation, 67. 
 Taney, R, B., delivers Dred Scott 
 decision, 340; criticised, 350-352. 
 
 Tarbell, Ida M., cited, 371, 446. 
 
 Taswell-Langmead, J. P., cited, 31, 38, 
 46, 60, 103, 119, 134, 446. 
 
 Taxation, and representation, 44, 67, 86, 
 156, 159, 160, 162, 168, 185, 245; di- 
 rect, apportioned, 245,251; control of, 
 249; necessary, 299. — See also Aids. 
 
 Tavlor, Hannis, cited, 47, 63, 75, 103, 
 121, 135, 446. 
 
 Territor}', control of, 258; slavery in, 
 345, 349 ; why acquired, 348 ; as prop- 
 erty, 349. — See also Northwest Terri- 
 tory. 
 
 Thirteenth Amendment, text, 373; 
 contemporary exposition, 375-380 ; 
 critical comment, 380-387. 
 
 Thomas, B. F., call for emancipation, 
 365. 
 
 Thorpe, F. N., cited, 179, 283, 446. 
 
 Thwaites, R. G., cited, 153, 446. 
 
 Tonnage duties, control, 252. 
 
 Transportation of prisoners, forbidden, 
 117; a grievance of colonies, 185. 
 
 Treason, no pardon for, 86; high, to fail 
 to summon Parliament, 90 ; rights 
 of those accused of felony or, 116; 
 against the United Spates, 257. 
 
 Treaties, control, 207, 209, 252, 255; su- 
 preme law, 259. — See also Foreign 
 relations. 
 
 Trial, by peers, 15, 18, 68, 168, 234; 
 rights of accused, 262. — See also Jurv. 
 
 Tucker, G. F., cited, 333, 447. 
 
 Tucker, Dr. Josiah, on taxing colonies, 
 161; Letter from a Merchant, 161, 447. 
 
 UNITED STATES, style, 183, 186, 
 205, 245; declared independent, 
 186-187; government by delegated 
 powers, 205, 263, 313; sovereigntv, 
 215,259, 315, 317; admission of^new 
 states, 258; guaranty to states, 258; 
 value of the Union, 290-292; preser- 
 vation, 293-304; foreign policv, 300- 
 305, 322-328, 401; preservation of, 
 object of Civil War, 358; citizen- 
 ship, 373; disqualification for office, 
 374; suffrage, 375; war with Spain, 
 388-391, .392, 398; attitude and duty 
 to Cuba, 389-394; and the colonies, 
 394-401; problems, 399. — See also 
 Confederation, Congress, Constitution. 
 
.^2 
 
 458 
 
 INDEX 
 
 ■yETO, power of, 92, 232, 249; of 
 V colonial laws, 184. 
 
 Vice-President, president of Senate, 247 ; 
 term, 253; election, 253, 263; quali- 
 fications, 264; succession to presi- 
 dency, 254; impeachable, 256. 
 
 Villein, fines of, 15. 
 
 Virginia Convention, Declaration 
 OF Rights, 166-169. 
 
 WAINAGE, of villeins, 5. 
 Walsh, Robert, cited, 150, 447. 
 War, control of, 86, 92, 208, 209, 213, 
 250, 252; powers in Emancipation 
 Proclamation, 363. 
 Wardship, regulated, 2, 3, 11, 17. 
 Warrens. — See Forest. 
 Washington, George, on Virginia 
 Biil of Rights, 169; Works, 109, 219, 
 
 270, 271, 286, 447 ; on the Confedera- 
 tion, 218; on the Constitution, 269- 
 
 271, 294; Farewkll Address to 
 THE People OF THE Uamtkd States, 
 286-306; declines a third term, 287; 
 on his own administration, 288, 304- 
 306; on value of the Union, 290; on 
 its preservation, 291-305; on its for- 
 eign policy, 300-304. 
 
 WASHIis■GTo^•'s Farewell Address 
 TO THE People of the United 
 States, text, 286-306; contemporary 
 exposition, 30S-309; critical comment, 
 309-311. 
 
 Wears, regulated, 17. " ■ 
 
 Webster, "Daniel, cited, 192, 238, 273 ; 
 on the Monroe Doctrine, 327 ; Works, 
 328, 447. 
 
 Webster, Pelatiah, on the Confedera- 
 tion, 216 ; Remarks on a Pamphlet, 
 217, 447. 
 
 Weights and measures, uniform, 17; 
 control, 211, 250. 
 
 Welsh, restorations to the, 21. 
 
 Wendover. — See Roger. 
 
 Wheaton's Reports, 312. 
 
 Widow, rights of, 3, 12, 13, 228. 
 
 William ot'Mahnesbur}', extols Henry I., 
 5 ; Chronieles of the Kings of Eng- 
 land, 5, 444, 
 
 William and Mary, declared king and 
 queen, 126; accept, 127. 
 
 Willoughby, W. W., cited, 319, 447. 
 
 W^ilson, Henr3% on Dred Scott decision, 
 353 ; Rise and Fall of the Slave Power, 
 353, 447. 
 
 Winsor, Justin, 165, 202, 447. 
 
 Witnesses, necessary, 18, 168, 257, 
 262. — See also Jury. 
 
 Woman, limited right of accusation, 
 21. 
 
 Woolsey, T. S., cited, 336, 447. 
 
 YEAS AND NAYS, under the Com- 
 monwealth, 83; in Congress, 248. 
 
 ^J 
 
 LEAr/'i