In these lectures I have used, for verification of facts, chronology, etc., the monumental work of Hannis Taylor, LL.D., "The Origin and Growth of the English Constitution," Boston, Houghton, Mifflin & Co., 1889, and the English classic, Taswell-Langmead, "English Constitutional History," sixth edition, London, 1905. For other facts and statements, their amplification and explanations, the reader is referred to my own work "American Constitutional Law; the Federal and State Constitutions," Boston Book Company, 1908.

The frontispiece is taken from the last-named book, by courtesy of the publishers.

THERE seems to be an impression abroad that our Constitution is a mass of dry bones; or at least that it is a technical document, in part faulty, and for the most part obsolete--like the rules of a game which has since so changed its nature that the old rules no longer apply. The Constitution has been likened to the frigate Constitution; a famous vessel in her day, but obsolete in type, no longer fit to cope with modern conditions. This metaphor is utterly misleading. I want to show you that it is not a mass of dry rules, but the very substance of our freedom; not obsolete, but in every part alive; more needful now than ever, and as fitted to our needs. Some of the constitutional rights which were thought of great importance under the Stuarts, or even one hundred years ago, may possibly seem less familiar and less necessary to us now. Even if it were true, that would not make of the Constitution an "antiquarian curiosity." But when we come to discuss them, we should hesitate from hastily assuming that any one of them has grown so obsolete as to be unnecessary to preserve. A few months ago, the provision against Bills of Attainder--that is, condemnation for crime or forfeiture of civil rights without due process of law--would have seemed hardly necessary in America. Yet since then, in his praiseworthy zeal to punish a military disorder, so far quite within his constitutional right as Commander-in-Chief, we have seen our President dictate what was little else than an Executive Bill of Attainder--a thing which was hardly, if at all, attempted by the Stuart kings. Another instance--after the Norman kings were deprived of the power of making laws, the Stuarts, James I and Charles I, assumed the power to suspend them. This led to the protest of Chief Justice Coke and the Commons, and ultimately to the Civil War; so that finally after the Revolution it was put into the Bill of Rights that the king should have no power to suspend the operation of any law. This also might seem obsolete; but if it were true--which it is probably not--that our present Executive recently promised to suspend or withhold the operation of the anti-trust law in case a certain great corporation were to take over the property of another, this would be an exact instance in point. No, we dare not say any part of this great document is obsolete, and it is all full of human meaning, of present application. It is to explain the true meaning of the Constitution, its human meaning, the safeguards that it gives to every one of us, the live issues that it still embodies, that I have been asked to give this course of lectures.

The study of Anglo-American constitutional law is that of the liberties of the people. It is neither a body of technicalities, as the demagogue is prone to consider, nor an instrument first new created in the year 1787, and now only an inconvenient impediment to the national destiny. Our own Constitution embodies and improves upon the English Constitution, and the English Constitution registers the totallity--the aggregate--of those principles which in eight hundred and forty years of struggle the Saxon peoples have won back again from Norman kings, from Roman conceptions of the sovereign state. Each rising wave of freedom left its record in some historic document--then perhaps the times cause it to recede again--until the next flood leaves a higher record still. And the Federal Constitution, the whole of it, is nothing but a code of the people's liberties, political and civil; a code of many centuries' growth, which they willed to adopt in 1787, and willed should never be abrogated without the people's will.

I said eight hundred and forty years--reckoning from the Norman Conquest; but the main constitutional principles are much older and go back as far as goes the history of the English people. William might conquer England, but he could not alter their free laws; from every wave of Norman tyranny they emerge, clearer than ever. Each king in turn must learn to recognize their strength; until, in the English Revolution, the Crown finally gave over all attempt to hold itself above them

And we have added in America two or three new principles which the world is agreed to consider the most remarkable of any of them. First of all, the great discovery that the people might be protected from any danger to their liberties, from the legislature or the courts as well as from the Crown, even from that Federal Government they were going to create; second, the great principle of the separation of the powers of government, which first appears in the Virginia Bill of Rights of 1776, just one month before the Declaration of Independence, and also written by Thomas Jefferson; and again in the Massachusetts Constitution of 1780, in the famous words of the closing paragraph of our great Bill of Rights: "In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men." These last ten words, you remember, Daniel Webster said were the greatest words contained in any written constitutional document. And this separation was without any precedent in actual history. Montesquieu had mentioned it, basing his discovery on the history of England--where a free people had repeatedly nearly lost its freedom by having the executive, that is, the King, assume legislative powers, that is, making the laws; or assume judicial powers, by interfering or controlling the courts which interpreted them. And a third great invention of ours, more rarely noted though clearly novel in the history of the world, was that wonderful scheme whereby local self-government, the control by the people of their own affairs, which was,from prehistoric times, a cardinal Anglo-Saxon right, was recognized and conjoined with the powerful national government, working directly upon the people, and not upon the States, as had been the case in all other federations of history and was the case even in our own under the Continental Congress. So that we, the people, manage our own domestic affairs, sue and are sued in our own courts, are tried under our local laws, while yet we have clothed the national government at Washington with power adequate to defend the nation, maintain its dignity abroad, and duly regulate affairs of national concern. And the last wonderful invention--we might almost call this also an accident--was the making the Supreme Court of the United States-not the King, the Executive, nor even Congress-the high guardian of this Constitution itself; so that no law could be made and no act be done in possible violation of any of a man's constitutional rights that the man himself, be he the humblest citizen, could not go into a court and have the law annulled.

"Annul" is the usual phrase, but it is an incorrect one; and this brings us to the first great distinction I want to leave in your minds, namely, what is our Constitution, as opposed to an ordinary law or act of Congress.

The Constitution is the permanent will of the people; a law is but the temporary act of their representatives, who have only such power as the people choose to give them. When the people of a State, or the United States, come together and make a constitution, they are doing the highest political act; and they themselves are the highest political power known to free Anglo-Saxon peoples. The people of Oklahoma, when they came together the other day to frame their Constitution, were the supreme political assembly known to a free world. They are the very source of all political power; nothing can withstand their will, and when expressed, it is permanent until they themselves in the same way choose to change it. Legislatures are but a small representative committee; for convenience delegated with a few, and only a few, of the boundless powers of a free people. Legislatures arose, as you know, in quite recent times. Almost down to the Conquest, the whole body of the Anglo-Saxon people made their law: the Witenagemot, or, as the Normans call it, the Great Council of the Realm. In theory every freeman could go, and was supposed to go, to these Witenagemots. Indeed, it is on record that at one of them held on Salisbury Plain, about a hundred years before the Conquest, there were sixty thousand voters present. This is "direct legislation by the people" of which we hear so much to-day and which some of our western States are beginning to introduce once more. But, for obvious reasons of convenience, in the course of two or three centuries they got into the way of choosing a smaller number of men to represent them. This is what we call representative government; and this was called the great invention which the English people had given to the world's science of government. It was first used in the very assembly which drew up Magna Charta. It has been copied--like trial by jury--everywhere since; in every European country, now even in Russia.

Now, Parliament, in England, is supposed to have all the powers of the people; but we more jealously guarded the people's rights, and all our State constitutions, as well as the National Constitution, carefully say that Congress, or the State legislatures, do not have all the powers of the people; but only represent them in such matters as they have expressly delegated to them in our written constitutions; and that all other powers are reserved to the people, or to the States.

Now, then, I hope you will see why it is incorrect to talk about a court "nullifying" a law. No one of our courts, not the Supreme Court of the United States, ever nullifies or can annul a law; but when there is a State statute or an Act of Congress on the one hand, and the permanent will of the people expressed in the Constitution on the other hand, and the two conflict--the courts have to choose which law to apply, and they apply the higher law, that is, the permanent will of the people as expressed in the Constitution--not the attempted act of their representatives beyond their own authority. The other law is really no law at all, and never was law; for under the American idea, that cannot be law, whether made by Congress, government, or President, by board or by commission, which in any way clashes with the permanent written will of the people. No other country in the world has this principle, whereby not even the government can make a law counter to the Constitution; nor any officer can do an act not authorized by it; and in either case the Supreme Court is made the umpire to judge. This system is the envy and the marvel of the rest of the civilized world.

The next great distinction between ours and the English Constitution is this: the English Constitution was made to protect the people against the King, against the Executive alone; not against bad laws, against Parliament. It was a bulwark against Charles Stuart, Henry VIII, and George III; but it was no bulwark against the Rump Parliament of the later Commonwealth, or against the corrupt Parliaments of the Tudor kings. Therefore, in England, when the kings sought to re-enslave the people, they were apt to make the effort through a subservient Parliament, even more than by a subservient judiciary; for the English Constitution is no bulwark to protect the people from parliaments or courts. But we had the wonderful idea of protecting ourselves against any usurpation of government, and the usurpation of any government--even of our own--thus retaining the liberties of the people forever in their own hands, exercised in their own local courts, their own town meetings and their own legislatures, guarded by all the courts of the States and of the United States; so that even their own government, set up only so far away from them as Washington, might not too much busy itself with their domestic concerns. For the one thing the English people learned was that a distant government, even benign--Henry VI in France, for instance, or even too much power centralized in London---was dangerous to the well-being if not the liberties of the people. The twelfth and thirteenth centuries are a continual struggle to keep power where it belonged--in the people's councils, not in the will of the King; in the county courts, not with the royal Chancellor. "The great original principle of the English judicial system was that of trial in local courts properly constituted--trial per pais, in the presence of the county, as opposed to a distant and unknown tribunal." (Taswell-Langmead, "English Constitutional History," sixth edition, London, 1905, page 28.) And, therefore, in our Federal Constitution we protected ourselves against usurpations even of our own government, or of either branch of it, Congress or President, on those home liberties which a thousand years' experience have shown to be, as it were, the irreducible minimum necessary to the Anglo-American people for freedom as they understand it. Now this was no accident; the Anglo-Saxon system is not to make constitutions ready-made, but to let them grow out of events and the actions of free men; and though it might seem marvellous that our Democracy, a Democracy which for the first time in history grasped all the reins of government, legislative as well as executive and judicial, growing conscious of its power actually to make the laws, should, as a first step, have taken pains to put this curb upon themselves and invented written constitutions, State and National,--there were two reasons for it; and these reasons are opposite to one another.

The genius of the Anglo-Saxon people is to rule themselves. To a certain extent it had been done, at least so far as the King's powers were concerned, in England for many centuries: "The laws of the English, the most ancient of modern law, extend in an unbroken series from Ethelbert, the first Christian King of Kent; the earliest written collections are simply digests of local unwritten customs which had been handed down by oral tradition and were now put in writing to meet the needs of a more developed and centralized State organization" (Taswell-Langmead, "English Constitutional History," sixth edition, London, 1905, page 33), and we had not--the founders had not--any doubt of our ability to go on ruling ourselves. But we were doing two things which were novel in the world's history: we were setting up State legislatures with unlimited powers; and we were setting up a remote Federal Government which we were anxious to keep in hand. Remember, the State constitutions are older than the Federal Constitution, and served as model for it. And the framers had two things to consider: they were trying to make a national government which should be purely political, that is to say, have to do with the nation as a whole in its relation to other nations, should look out, therefore, for their peace and protect them in time of war; and also to create and maintain State governments, at home, to regulate the social affairs of the people. To the States, therefore, was intrusted a man's liberty in relation to other individuals, a man's private property, all the regulation of his domestic concerns; to the Federal Government, as such, the Federal Constitution gave but one power over the States directly--but one right to interfere with them--and that was, if they ever ceased to maintain a republican form of government. Short of that, short of establishing a monarchy or a tyranny, the President of the United States and the Federal Congress have no right to direct interference with a State as such.

Now these two constitutions, State and National, were, as you know, for the first time put in writing by our forefathers--the first written Constitutions in the history of the world. For the English Constitution is not contained in any one writing. This double safeguard, or set of constitutions, State and National, were drawn up with ends in view which were almost opposite to each other. And this is the next thing that I am going to ask you to remember. What our forefathers were afraid of in the Federal Government was an aristocratic or autocratic rule, or a remote power which might come to interfere with their domestic affairs. Therefore, the influences which restrained and limited the Federal Constitution were democratic. Most of its restrictions were drawn up by men like Jefferson, jealous of any government which was not direct from the people. The State constitutions, on the other hand, were rather aimed at protecting the propertied classes--the aristocratic classes--from the omnipotent legislatures they were about to create. Therefore the restrictions in the State constitutions are mostly imposed on the democratic legislatures in the interest of property or of order. It was the propertied classes, the educated classes, which drew up the State constitutions and insisted most upon them; it was the democratic masses rather who watched so jealously the powers about to be given by the United States Constitution. Some things they were all united upon, first of all the great Bill of Rights; which is much the same thing in both; those marvellous clauses which grew from five sentences in Magna Charta to thirteen in the Bill of Rights of 1689, when they had had experience of the Stuart tyranny, and to sixteen in the Virginia Bill of Rights, and thirty in the Constitution of Massachusetts; and, in the Federal Constitution, the first ten amendments. These are the fundamental things; and the people of the United States refused to adopt the Constitution itself unless these ten amendments were promptly added; and so it was done. These, in other words, are the principles they cared for most; and these are the principles of which I shall try to explain the importance in these lectures. Remember, it was the people under Jefferson who said to the Federal Government: "Thus far shall thou go and no farther "; it was the educated, propertied classes, the Federalists at home in their own States, who said the same thing to the State legislatures to whose local government their personal liberties and private fortunes were about to be intrusted. And the historical reasons for both are that during the Revolution we had disastrous experience of omnipotent State legislatures, for the first time clothed with boundless power and recklessly using it, and in the Revolution also we had experience of the weakness of a national power which could not enforce its laws directly upon the people of the States. One, therefore, is meant to frame a Nation, the other to organize the States; but both were careful|y limited, the one in the interest of the people and the States, the others in the interest of the people alone.

But neither Constitution was or is a mass of dry bones. The very definition of a Constitution is--the expression of the people's liberties; and both Federal and State constitutions were devised to secure this; but the one, rather political liberty, in and from the government at Washington; the other, rather personal liberty, for the people themselves and their possessions at home. Remember, again, the two great differences we have made from the English Constitution; first, the separation of the powers, and second, the subordination of the government and even of Congress or the State legislatures to the permanent will of the people as expressed in a written document which they alone could alter. And this is the great difference between English freedom and American freedom to-day. Under the English Constitution the House of Commons is the people, is the sovereign; anything it does is right, constitutionally speaking. With us, not Congress, not the legislatures, but the people remain sovereign. We never have parted with our sovereignty. Our legislatures, State and National, merely represent the people; and that in a carefully delimitated scope of authority. If Congress or a State legislature transcends that authority which they derive from the people, or when the Executive does so, even the President of the United States, the courts are bound to take no notice of such acts; not to destroy such laws, as those who would make the courts unpopular are fond of saying, but to apply, where two rules clash, the higher rule; that is to say, not the will of the present President or Congress, but the permanent will of the sovereign people as expressed in the written Constitution.

I need no apology for presenting this subject at this time. The English people, in a thousand years' experience, have found that their liberties were never so really in danger as when they knew it least, never so nearly lost as under the kings they liked best. They were in no danger from kings like John; it was from John they won Magna Charta itself. They were in no danger from kings like Charles I. They had, it is true, a big fight for their liberties then, but they were never really in danger. It was Charles's head that was. But under Elizabeth, under Henry VIII, and under George III (who, we must remember, was a very popular king in England) they lost so many of their birthrights that it took sometimes a century to win them back. Of course it was easier for them to lose, and harder to win back, because their Constitution was not in writing, was not definite. It was always open to Henry VIII or Charles I to deny that the constitutional principle for which they were contending really existed. But the fact remains that these principles were destroyed or were surrendered or taken away from them usually when the people were of one mind with the king; usually when they themselves were willing to subordinate their liberty birthrights to the passion for equality, or to some other immediate end. And this is natural. When a people is unanimous--as we now are--on most of the things that we desire, we may carelessly adopt a means that seems to be a short cut that way, though it be destructive in later times, or in other hands, of government by the people itself. And it seems as if a portion, or a party, of our people were in danger of adopting the European view of government and of lawmaking--that law is a command of the sovereign, not a custom of long growth among a free people; that a legislature or a sovereign nation is, or ought to be, omnipotent; and that whatever power a European Great Power had or has necessarily resides in our Executive or in Congress--although the whole history of our Republic is that it is the first great attempt of a free people to keep certain of such powers in their own hands--at least until they choose to give them up--and to base for all time their own national career upon undying principles, as written in those tablets wherein our people have expressed their will only to be governed and their desire that by them alone their Republic shall endure.

Now I am going to take up this course in the inverse order of the title. That is to say, I am going to speak of the liberties of the people first. Broadly speaking, what are they? They may be divided into three broad streams, each one of which is contained in Magna Charta itself: The right to life and liberty--the right to property, whereby a man's liberty, that is to say, his powers, are increased--and the right to law. And I am going to take these up also in their inverse order, beginning with law:

What is the right to law ? I am going to try to define what I mean at the end of this lecture, though I shall have time to amplify it in the next; and let me say here that one great difficulty I am going to have in this course is in making you see what, in a sense, you have always seen. We are not conscious of the air we breathe; but if some Martian from another planet who got on without air, should come to us, he would be very conscious of it indeed. Now the right to law is like this. The right to law, as known to Anglo-Saxon peoples, is something which has not any parallel in any other country in the world and which never had any like elsewhere in any time. It is utterly unknown even to such countries as Germany and France. It is so unknown that it is not even understood there except by their students; while it is hardly understood by us just because we are so used to it that we cannot understand anything else. In Germany, if anybody injures you under pretence of government authority, that is to say, if he is the Emperor, or a member of the government, or a judge, or a soldier, or a policeman, because of that fact you have no legal right to sue in the ordinary way. The wonderful Anglo-Saxon principle, on the other hand, is and always has been, since it was re-established against the Norman kings, that there is nobody so high as to be above the law. If the emperor, or a soldier, or a general, or a policeman, does what you think he has no legal right to do, you can have the law on him--a vulgar phrase, which, like many vulgar phrases, is pithy with exact truth. I repeat that in Continental countries, to say nothing of Asiatic, there is no such thing as having the law upon a man who pretends to act under some government authority. They have a whole system of privileged law--what they call Administrative law--devised for the use of government functionaries alone. From this the plain citizens are excluded. But with us, if the President of the United States interferes with your liberty unlawfully, you can resist him, both by force, in proper cases, and always by suit in the courts. If a magistrate arrests you without proper cause you can sue him just as much as if he were not a magistrate. If a commission seizes your property, you can appeal to a jury. Every English freeman, every American citizen, is entitled to have his law--to have his rights tested in his own courts--in his own courts, mind you, not in some other court in some remote place, or in some other government tribunal--this was what they dearly struggled for in England--not before a Star Chamber or a Government Board or a Royal Commission--but in the plain county common law courts--in his own courts at home, and as against anybody. He can sue anybody there, and he cannot be haled away for trial to any lofty or remote tribunal. Violation of this principle by George III is what the Declaration of Independence complained of: we were made to stand trial in England, where we could not bring our witnesses, or have the judgment of our neighbors. This principle--the right to law--equal law--was thoroughly established back in England as early as the reign of Saxon Edgar, re-established under Henry II, and is the cardinal difference between the rights of an English citizen and those of other countries. We have the right to law, and thd law against anybody; they have no right to law against the government or those in authority.

This is a thing which Continental people cannot understand and which Americans or English, travelling in Continental countries, have always been so full of that it brings them into difficulties. That is to say, if a Frenchman is arrested by a man in uniform, the last thing that would occur to him is the notion that he has any right to resist or to make question. At most he may humbly ask what his offence has been. An Englishman or an American, on the other hand, when his personal liberty in any way is interfered with by anybody, whether a soldier, or a policeman, or a general, or a judge, wishes at once to know, what for? and he has the right to know, what for! and to test it in his own law courts. And that permanent and universal right to law, as against anybody, belonging to everybody, is the first and almost the greatest of the people's liberties.

And now, what is this law? and this brings out another fundamental difference between Anglo-American and European freedom. The English notion of law is diametrically opposed to the Continental, Norman, or Roman notion--as different as black from white, or as sound from sight. The two conceptions of law are so different that there really is almost no relation between them--and asking you kindly to remember this difference, I will close with it. In brief, the English notion of law is the custom or usage of a free people, not originally expressed in writing, and not commanded by anybody except, possibly, the people themselves. The Continental notion, which was the Roman notion and hence the Norman notion, is the command of a sovereign to his subject, necessarily, therefore, written, and made new by the king. It is created by the government, to whom the people are subservient; not born of the people, of whom the government itself is the creation. It may bear no relation to custom or usage, or past history or even common sense. It is an order, as from a master to his slave. English law--Saxon law--on the other hand, is the usage that a free people have had, a matter of custom which everybody is supposed to know, and which, in theory at least, has lasted for all time, something like a law of nature. It is not commanded of you by anybody, in original theory; it is simply that code of customs by which your acts are judged and which may enable you to take the law into your own hands--for this was the original remedy. That is to say, in the year 600 or 700 there were certain cases, certain offences, which put a man out of law; that is the origin of the word "outlaw." Thereupon you could kill him, or avenge yourself on him, as the law allowed. If a man took your cattle, or if he injured your person, you had the right to avenge yourself upon him to a certain definite extent, ranging all the way from killing him, down through personal chastisement, to a mere money fine. You executed the law yourself; or your neighbors helped you. It was not done for you by a king. Later, as civilization improved, it was done for you by the whole people, through their courts; originally by your neighbors, witnesses, who stood by you in surety.

This difference is so radical that we must never lose sight of it. English law, American law, is in theory the established customs of a free people. All other law in the world is the order of a sovereign to a subject. Under the Norman kings, it is true, writs were brought in the name of the king, "We, John, command you," etc., but this was only their formula. Writs in our States run in the name of the people; for instance, "In the name of the people of the State of New York, by the grace of God free and independent." When a trespass was committed in Norman England, it was claimed to be committed against the peace of the king, and so it is termed in the law process still; with us, it is against the peace of the people. The attempt of the Norman kings to introduce European notions of law, Continental notions of royal authority, was successfully resisted by the English people in the first two centuries after the Conquest, so that in substance their law is the same as ours; but the effort of the Norman kings to introduce Continental ideas remains in the words that I have quoted--" against the peace of the king"; and suits are still in theory tried coram rege--before the king as the fountain of justice. Stubbs tells us that in a sense the great struggle of the English people under the first Norman kings was to establish that the peace of the realm was the peace of the people and not the king's peace. Not a mere phrase, you see, but a very real meaning. Is it the government that is sovereign, or is the government but the servant ? They struggled successfully; and all vestige of the Norman attempt to foist European ideas of law and government upon the English people has been swept away, with the exception of a few mere forms. We shall find the same thing when we come to law-making. Under European theories the law is made by the king, as I have said; it is the order of the Crown to the subject. Under English theories, it is made first by the whole body of the people, then by their representatives in Parliament. The Norman kings insisted on their royal form, and every act of the British Parliament is still signed "The king so wills"; but Parliament or the people very early got the substance back, and established their right to make the laws themselves. It is characteristic of the English people not to care for forms provided they get the substance. So the first aspect of English constitutional history since the Conquest is the effort of a free people to reestablish two ideas--the right of everybody to law, and the right to law as it was in the time of Edward the Confessor; that is to say, to the customs of the free Saxon people and not the orders of a feudal lord. And every Norman king after William was made, on his coronation oath, to promise this--the laws of Edward the Confessor--until Magna Charta came. After that they promised to respect Magna Charta instead.

And now the reason why we had to have written constitutions, not unwritten as in England, is because with us the people is the sovereign, not, as in England, now the House of Commons and formerly the king; and our legislatures cannot make any kind of law they will, but only such as the people have chosen to allow. When you have the people sovereign, possessing all powers and only parting with such of them as they choose to their own legislatures or to their own executive, you see it is necessary to have a written constitution in order to make clear just what powers the people have given away. Without a constitution, our legislatures would be, like the English Parliament, omnipotent; just as without a constitution the English king would be omnipotent. The one end and aim, therefore, of a constitution is to protect the people's rights, both the rights of the whole people, or any part of the people, or even of one man as against the people, in such cardinal rights as by our constitutions he is declared not to have given away; to protect them against either king or legislature. This is constitutional government. The object of republican government is to enforce the will of the majority; the object of constitutional government is also to protect the rights of the minority; to guarantee to each and every man, to every class, the essential rights that he must never part with. And it is those cardinal rights, the liberties of the people, which form the first subject of these lectures, and the first, and in some respects the greatest of them, is this right of every man to law.