Part 2

For many generations in England and in America it was believed that the writ of habeas corpus, justly esteemed the great bulwark of personal liberty, had its direct guaranty or at least its antecedent in Magna Carta. Such was the contention of counsel in the Five Knights case of 1627, and such was the declaration of the Petition of Right of 1628. This view is now being challenged on the ground that the exact procedure subsequently developed was not provided for in Magna Carta and was not in the minds of its authors. Even if this be so, the underlying principle of chapter thirty-six and its promise that the writ of inquisition should be freely "granted, and never denied" naturally led in time, after the passing of trial by combat, to the right of speedy inquisition by grand jury and trial by petit jury. At all events, the principle of the writ of habeas corpus was for centuries assumed to be embodied in Magna Carta.

Professor Dicey lecturing at Oxford on "The Law of the Constitution" has well remarked that, although the English Habeas Corpus acts declare no principle and define no rights, they are for practical purposes worth a hundred constitutional articles guaranteeing individual liberty. As in England, so with us. Without the writ of habeas corpus there would be no liberty worthy of the name and no rights of personal freedom of any practical value. We have only to read the leading cases in our courts to realize how great a part the writ has played and still plays in securing and rendering effective the fundamental principles of American liberty.

Chapters twelve and fourteen of Magna Carta dealt with the subject of taxation, and they laid the foundation of our representative system and of the separation of the legislative from the executive power. As has been suggested, the only legislative function that the people of England in the thirteenth century contemplated as closely affecting them or as likely to create any pressing grievance was that of taxation. It was, therefore, expressly provided in the Great Charter that, aside from the three existing feudal aids, more or less fixed, the power to impose taxes should not be exercised without the consent of the _commune consilium_. This common council is the body that fifty years later developed into the famous parliament of Simon de Montfort of 1265.

In the controversies in regard to taxation subsequently arising, whether in parliament, in the courts, or in the forum of public opinion, it was always insisted that Magna Carta prevented taxation without the consent of parliament, just as in the eighteenth century our ancestors contended that Magna Carta prevented taxation without representation, that is, prevented the imposition of taxes except by a legislative body in which the taxpayers were represented. We have only to refer to the arguments in the great constitutional cases before the courts of England in the seventeenth century, such as the famous case of Impositions in the reign of James I. and the still more famous case of Ship-Money in the reign of Charles I., to realize how much the people relied upon Magna Carta as establishing the doctrine that parliament alone could impose taxes.

The counsel for Bate in the former case and for Hampden in the latter case may not have apprehended the philosophical theory of the separation of governmental powers elaborated by Montesquieu in the next century, and they may not have contended that taxation was essentially a legislative function and, therefore, could not be exercised by the king; but in final analysis they affirmed these principles when they asserted that parliament alone could impose taxes. The judgment of a majority of the court in the Ship-Money case, as had been the judgment in the case of Impositions, was in favor of the crown, but the appeal to the country cost Charles I. his head and ultimately resulted in vesting in parliament the exclusive power to legislate and hence to tax. If England had then had an independent judiciary charged with the duty of enforcing the fundamental law of the land, the levying of the taxes in both of these cases would have been held contrary to the letter, as it was certainly contrary to the spirit, of Magna Carta.

It is no answer to say that the parliament of to-day finds its prototype not in the old common council referred to in Magna Carta, but in the parliament of 1265, nor is it an answer to say that the idea of taxation in its abstract form is essentially modern and was quite unknown in 1215. I do not suggest that the people of England in 1215 or even in 1265 understood the virtues of the representative system, or the principles of taxation or of the separation of powers. The point is that the direct consequence of the provisions of Magna Carta was a parliament based, theoretically at least, on the representative idea as well as on the principle that there could be no legislation without the consent of parliament.

The most famous of all the chapters of Magna Carta and the most important and far-reaching from a juridical point of view is undoubtedly the thirty-ninth, which provides that "no freeman shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land."

The substance of this provision as to "the law of the land," or its equivalent "due process of law," is of universal application throughout the United States as a constitutional limitation upon the powers of government, and it is to be found not only in the Constitution of the United States but in the constitution of every state of the Union. It is now firmly established in American and English constitutional law, and it is familiar knowledge, that the terms "the law of the land" and "due process of law" are exactly equivalent in meaning and in legal force and effect. The earliest use of the phrase "due process of law" in American constitutions seems to have been in the fifth amendment to the Constitution of the United States, ratified in 1791. None of the state constitutions then in existence contained that term, but nearly all of them used the phrase "the law of the land." The phrase "due process of law" will be found in the New York bill of rights of 1787.

Until recent years, it had been assumed that the term "the lawful judgment of his peers" in Magna Carta meant trial by jury according to the modern understanding of that term, and that the term "the law of the land" meant laws conforming to those fundamental principles of justice which protect every individual in the full enjoyment of life, liberty and property secure from the arbitrary exercise of the powers of government. That is still the technical legal meaning of these two terms both in England and in America, although their practical effect and operation are different with us, because of our system of written constitutions which the legislative branch may not disregard or violate. Both of these meanings, however, are now challenged by certain critics as being without foundation in either the provisions or the history of the Great Charter.

Some historians contend that the familiar provision of Magna Carta could not have meant trial by a jury of twelve and a unanimous verdict, because such a jury, according to our present knowledge, did not exist until the second half of the fourteenth century. But it is quite immaterial whether the exact form of our jury-trial existed in England in 1215, or when the Great Charter was subsequently reissued or confirmed, provided that the foundations of the system had then been laid. It is sufficient for us that the antecedents of the modern jury system in all its three forms of grand jury, criminal jury and civil jury existed at the time of Magna Carta and were preserved by it. As the jury system developed, with the changes inevitably attending all such institutions of legal procedure and machinery, the form for the time being, whatever its exact nature, became "the lawful judgment of his peers" within the intent and meaning of the Great Charter. In any event, the latest confirmations of that instrument occurred at a time when the jury system as now in force was being firmly established. It is, therefore, easy to understand how the provision "the lawful judgment of his peers" in the course of time came to be regarded as intended to guarantee the common-law jury of twelve with unanimity in verdict.

Thus many, if not most, of our constitutional provisions now apply to conditions not at all contemplated by their framers although clearly within the principle enunciated and the spirit of the language used. Much of the efficacy of our federal and state bills of rights, or of any similar provisions which this Convention may embody in the new constitution, would be practically nullified if the language used were to be interpreted as being limited to the particular conditions existing when they were adopted. It is the spirit and the expanding principles of constitutional provisions which should always control. The letter killeth.

A charter of liberties, a bill of rights, or a constitution is not an ephemeral enactment designed to meet only the conditions existing at the time of its adoption. It embodies and perpetuates permanent principles. It is designed to endure "forever," in the language of Magna Carta, and "to approach immortality as nearly as human institutions can approach it," in the lofty phrase of Marshall, the great Chief Justice of the United States. Under any other rule of interpretation, Magna Carta would have become antiquated long before the discovery of America.

By the phrase "the law of the land," in chapter thirty-nine, the fundamental principles and axioms of the existing law were perpetuated. Exactly what those fundamental principles and axioms were then understood to be is not now capable of accurate exposition. The judges and the people of those days certainly had some definite ideas of reasonably just and fixed rules of conduct adequate for the solution of the simple questions arising in the controversies then being submitted for adjudication. Had the judges been pressed for a comprehensive or philosophical definition of "the law of the land," they might have said that they would not attempt to define the term any more than they would attempt to define justice itself, and that, as the Supreme Court of the United States declared only a few years ago, it is better to ascertain the intent of such an important phrase in a great constitutional document by the gradual process of judicial inclusion and exclusion as practical experience may dictate and as the cases presented for decision may require; in other words, that their decisions would in time sufficiently declare and perpetuate the principles of the law of

"A land of settled government, A land of just and old renown, Where freedom slowly broadens down From precedent to precedent."

The phrase "the law of the land," as used in Magna Carta, must have been intended at the time to include procedure as well as substantive law, but the term "due process of law," now its current equivalent, originally related only to procedure. A very early, if not the earliest, use of the term "due process of law" will be found in a statute of the year 1354, 28 Edward III., in which it was provided that no person should be condemned without being first brought to answer by due process of the law, the exact wording in the quaint Norman-French of the day being "_saunz estre mesne en respons par due proces de lei_." As at the same time the Great Charter was being expressly confirmed "to be kept and maintained in all points," the provision in regard to _due proces de lei_ in the act of 1354 was undoubtedly intended to be supplemental to the provisions of the Great Charter and to apply only to persons being brought to trial in a court of justice. It is true that in the seventeenth century Lord Coke used the phrase "due process of law" as the equivalent of "the law of the land," but in the contemporaneous Petition of Right of 1628 mention is made specifically of the "Great Charter of the Liberties of England" and its provision as to "the law of the land," and reference is made separately to the act of 28 Edward III. and its provision that no man should be prosecuted "without being brought to answere by due process of lawe."

The same distinction in the use of these terms will be found in the history of the Plymouth colony as early as 1636 and also in the early history of the state of New York. The New York charter of liberties and privileges of 1683 speaks of "being brought to answere by due course of law," the words evidently being taken either from the act of Edward III. of 1354, or from the Petition of Right of 1628. The New York constitution of 1777 used the term "the law of the land" but did not use the term "due process of law." In the New York bill of rights of 1787, we find the phrases "the law of the land," "due process of law" and "due course of law," and in one section the phrase "due process of law according to the law of the land." Both terms, "the law of the land" and "due process of law," are used with evidently the same meaning in the present constitution of the state of New York, that is to say, "the law of the land" is used in section I of Article I. and "due process of law" in section 6. The separate history of each section, the former first appearing in the constitution of 1777 and the latter in the constitution of 1821, will account for the difference in terminology.

It would be interesting to trace the varying uses of these terms in our forty-eight state constitutions, but that must be left for some other occasion. A majority of the state constitutions, including most of the recent constitutions, now contain the term "due process of law." As that term is the one used in the fourteenth amendment, which is applicable to all the states, it might be preferable, for the sake of uniformity and certainty, to adopt that form as less likely to confuse. Moreover, the phrase "due process of law" lends itself readily to a more comprehensive and inclusive definition if we define the word "due" to mean _just and appropriate_ and the word "process" to mean _substantive provision_ as well as procedure.

Finally, it may be of interest to notice the sanction and security devised for enforcing the covenants of Magna Carta. A body or tribunal of twenty-five barons, called executors, was created by chapter sixty-one, who were to "be bound with all their might, to observe and hold, and cause to be observed, the peace and liberties we have granted and confirmed to them," and who were to have power to compel the king himself, even by force, to keep the promises he had made. The clause providing this security or legal sanction was crude, but it was not necessarily an impracticable innovation. Although the plan utterly failed, it remained of immense value in principle. That principle established the right of the subjects to compel the king of England to obey a body of fixed laws outside and beyond his will; it justified revolution for just cause, and it inspired our forefathers in their struggle against George III. The influence of this idea upon public sentiment as justifying revolution, particularly during the seventeenth and eighteenth centuries, cannot well be over-estimated. The ineffectiveness of this provision of Magna Carta served also to demonstrate the futility of such a tribunal and security, and to lead the English people to look thereafter solely to the courts of justice and to parliament for the protection of their rights and liberties. The founders of our own republican governments may have been warned by the failure of this sanction that it would be unwise to create any political body with power to enforce constitutional provisions, and it may have been for this reason that they left the enforcement of constitutional limitations and the protection of the individual and minorities to an independent non-political forum composed of impartial judges learned in the law and meaning "to observe it well," according to the spirit of Magna Carta.

In closing his great commentaries on the Constitution of the United States, Mr. Justice Story admonished the American people that, although the whole structure of our constitutional liberty was erected by architects of consummate skill and fidelity, with its defences impregnable from without, it might nevertheless perish in an hour by the folly or corruption or negligence of its only keepers, the people. It cannot, indeed, be too often declared that, if constitutional government and fundamental rights are to endure, they must be maintained and preserved by competent leaders and representatives of the people constantly teaching the value of the traditions of Magna Carta and the necessity of adhering to constitutional principles and observing constitutional morality. The members of this Convention are not likely to disregard the living spirit of the Great Charter of English Liberties and its enduring value to Americans. It was Lincoln who said that "as a nation of freemen we must live through all time, or die by suicide." But we shall perpetuate free government and civil liberty only as we adhere to two essential conditions: the one, that our fundamental rights shall continue to be inviolable by the state, the other, that they shall be equal. "If not inviolable, they are not rights, but only enjoyments on sufferance; if not equal, they are but the privileges of a class, whatever that class may be."[4]

FOOTNOTES:

[Footnote 1: Address before the Constitutional Convention of the state of New York at its celebration of the seven-hundredth anniversary of Magna Carta, Albany, June 15, 1915.]

[Footnote 2: Guesses at Truth, 1st series, 3d ed. (1847), pp. 324-325.]

[Footnote 3: W.S. McKechnie, _Magna Carta_, 2d ed. (1914), p. 159.]

[Footnote 4: Edward J. Phelps, Orations and Essays (1901), p. 127.]

THE MAYFLOWER COMPACT[5]

Wherever Americans gather, at home or abroad, those who can claim the proud heritage of descent from the Pilgrims on the Mayflower are accustomed annually to join in thanks-giving for all that they owe to their ancestors. The spirit which prompts these celebrations is singularly wholesome, and indeed holy. Among the natural instincts of the heart, common to all races, is a longing for communion with the past, which manifests itself in the worship of ancestors. That this spirit of reverence has been from the earliest ages a most powerful religious and patriotic force is a fact familiar to us in the history of the Egyptians, the Greeks and the Romans. We readily recall the beautiful ceremonial of pagan Rome on the _dies parentales_, when violets and roses and wine, oil and milk were offered and _aves_ were chanted to the spirits of their dead.

An impressive example of the survival of this instinct in modern times is afforded by the Japanese, who daily, at innumerable household shrines and public temples erected to Shintō, worship their ancestors as the gods of the home and of the nation. When, twenty-years ago, Japan so easily defeated the Chinese Empire with ten times the population of Japan, the surprise and marvel of the world impelled one of the most brilliant writers of our generation to seek the source of the fortitude, the indomitable spirit and the military valor of the Japanese. He did not expect to find it in their form of government or in their laws, for he realized the great truth that mere forms of government and laws possess no magical or supernatural virtue and are of little moment in nations in comparison with the moral character of their leaders and their people. He discovered, as he believed, that the secret of the civil and martial power of the Japanese and the source of their moral energy and virtue--I use virtue in the Latin sense of valor--lay in the vital and all-pervading worship of their ancestors, based upon the deep-rooted belief that all things are determined by the dead. He found that this homage excited at once the deepest emotion and the most powerful inspiration of the race, shaping their national character, directing their national life, teaching them reverence, obedience, self-restraint, temperance, loyalty, courage, devotion and sacrifice, and making them ever conscious of the prodigious debt the present owes to the past, as well as keenly sensible of the duty of love and gratitude to the departed for their labors and suffering. "They," the dead, he eloquently wrote, "created all that we call civilization,--trusting us to correct such mistakes as they could not help making. The sum of their toil is incalculable; and all that they have given us ought surely to be very sacred, very precious, if only by reason of the infinite pain and thought which it cost." And then he added, "Yet what Occidental dreams of saying daily, like the Shintō believer: '_Ye forefathers of the generations, and of our families, and of our kindred,--unto you, the founders of our homes, we utter the gladness of our thanks_'?"[6]

In the reverential spirit so beautifully expressed by this Japanese prayer, I venture upon a necessarily brief and imperfect review of a subject of transcendent and enduring interest to Americans--the debt that American constitutional government, under which we enjoy the blessings of civil and religious liberty and of just and equal laws, owes to your ancestors of the Mayflower.

In these days of superlative comfort and affluence, it is difficult for us assembled in this palatial hall, feasting better than the Cæsars feasted and served as not even princes were served three hundred years ago--difficult, if not impossible, is it to carry our minds from this gorgeous and almost oppressive luxury back through the centuries to November, 1620, to the Mayflower covered with snow and ice and buffeted by fierce winter winds off the bleak and desolate coast of Cape Cod. Equally difficult is it to picture to ourselves and in imagination to breathe the air of that first American constitutional convention, in the cramped and chilling cabin of the Mayflower, when the Pilgrim Fathers were assisting, as Bancroft says, at "the birth of popular constitutional liberty," and were discussing the provisions of what has since been called the first written constitution ever framed by a people for their own government from the time history began to record human politics and human successes and failures. I need not stop to read the contents of the completed draft of that constitution, conceived in the then vague prompting, which one hundred and fifty-six years later was to be proclaimed in our Declaration of Independence as a self-evident truth, that all governments must derive "their just powers from the consent of the governed." Nor shall I read the names of the forty-one immortals who executed that compact in order to evidence their covenant of due consent and promise of obedience to its provisions and spirit. Surely, if there be one constitutional document which should be familiar to all Americans, and particularly to the descendants of the Pilgrims, it is the Mayflower Compact of November 21, 1620.[7]