Louisiana (La.), (1812, 1845, 1852, 1864, 1868, 1879) Constitution of 1898 Maine (Me.) Constitution of 1820 South Carolina (S. C.), (1776, 1778, 1790, 1865, 1868) Constitution of 1895 THE English Constitution is expressed in writing in the Magna Carta of King John (1215); with certain omissions and a few additions in the Magna Carta of Henry III (1216), and the Confirmation of the Charter granted by Edward I in 1297; in the Petition of Rights extorted from Charles I in 1628, and finally enacted in the Bill or Declaration of Rights subscribed to by William of Orange in 1689; in the Habeas Corpus Act of Charles II (1679); and in the Act of Settlement of Queen Anne (1700). Besides this there are certain fundamental statutes which by long observance or by frequent re-enactment have grown to be such essential parts of the English notion of liberty or government as to be in effect constitutional. documents; such, notably, is the Statute of Monopolies of 1623 and the principle against restraint of trade and monopoly of commerce or of industry embodied in the long series of statutes against forestalling, engrossing, regrating, and against by-laws in restraint of trade or depriving one of his legal rights, which all begin as early as 1285,' and only end under George III, when such principles were immutably established in the popular mind as well as in the lawmaking of Parliament and the law-giving of judges. But the English Constitution should hardly be regarded as embodied only in these documents; nor the American Constitution, outside the frame of government, be considered as first expressed in 1787. Magna Carta and the other constitutional documents are but 1 See Book II, Historical Digest. the date uncertain, but before Ed. III; James C. Carter (Law, its Origin, His- and the statute punishes forestalling of tory, and Function, N. Y. 1907) seems "grain or any other Thing to be sold to confuse these statutes with those fix- coming by Land or Water, oppressing ing prices, and states that they began the Poor and deceiving the Rich." For in 1552. On the contrary, they were a discussion of their relation to the made perpetual soon after (13 Eliz.) modern laws against Trusts, see and began under Edward I (1285). Chapters V, VI. Statutes at Large (Vol. I, p. 188) calls the record of the victories of the people in the long fight which they waged for their liberties against the Crown; they mark the definite establishment of Anglo Saxon notions of liberty and law over the feudal or Norman, European, Roman or Civil Law view, which the Norman kings after the Conquest, and, later, even the Tudors and the Stuarts, endeavored to impose on the English people. Indeed the notion of the sovereignty of the Crown, of personal government, only ended with George III of the House of Hanover. Magna Carta is in form a treaty between the Norman king and his English subjects, assembled for the first time in a representative assembly in which the Commons also took part, whereby he recognizes the geheral body of liberties of the English freemen as known to them at that time. The form of these early constitutional documents, confirmations of charters, coronation oaths, etc., is always a recognition of prior laws, customs, or liberties, as already existing: "All the laws and customs of the men of Kent as they existed in the time of King Withraed." For statute-making in the modern sense was yet unknown. Indeed, the very notion of a statute, that is, a law made by a sovereign and addressed to his people, with a sanction or threat of punishment if disobeyed, is a notion of Roman or Continental law; foreign to the genius of the English folk, who made their laws themselves or, more correctly, recognized all law as but the growth of the free customs of the people.1 English legislation before the Conquest does not consist in what we should now call making laws, but rather in decreeing the scale of punishment for their breach; when they do make a law, it is never regarded as a new law, but is merely recognized by the Great Council as part of the existing law of England. Their law-making was not statute-making, in the modern sense; but at most a recognition, or an expression, in writing for the first time, of the law already existing; the primal distinction being that, in England, the people made the law, and the king but recognized it. During four centuries after the Conquest the kings vainly endeavored to impose upon the English people the Continental view that law is the command of a sovereign to a subject, not the customs and usages of the people; an effort which proved futile, and by the eighteenth century did not survive even in the royal veto, but only 1 The admirable lectures of James C. Carter above referred to argue strongly for this principle. There are doubtless some Continental examples of such custom-law; but this book is intended to state broad principles, without regard to exceptions and qualifications, for which the reader is referred to the footnotes in Book III. |