been declared unconstitutional, either by the U. S. Supreme Court or by the courts of the State enacting them; while the half that is valid hardly do more than enunciate the principles of the common law.' In England no more legislation was necessary. The Massachusetts Body of Liberties copies the Statute of Monopolies passed eighteen years before: "No monopolies shall be granted or allowed amongst us but of such new inventions that are profitable to the country and that for a short time." And finally the American principle against class legislation, of which in our next chapter.

1 See Book III, Art. 58. The East thus anticipating the principle of stock India Co., chartered under Elizabeth, assessments; and the charter gave a is said to have been the first trading monopoly of trade "into those parts corporation in the modern sense; that limited by their incorporation." In the is, an association for making money same year is a charter to merchants and dividing the profit, although it trading in the Russian seas, and in allowed the members to trade sepa- 1650 a charter to the weavers of Norrately. In 1643 came the charter to wich giving power to adopt by-laws, the merchant adventurers of England to impose fines for imperfect weav"for the better maintenance of trade" ing lately forbidden by statute in closing with the words "said Fellow- Massachusetts, which statute was deship shall be a corporation and shall clared unconstitutional (Croth v. Perry, have power to levy moneys on the 155 Mass. 117). A few years later members of the corporation and other come the Hudson's Bay and Greenland goods for their necessary charge and Companies. maintenance of their government,"

CHAPTER VII

OTHER CONSTITUTIONAL RIGHTS

THERE are several other cardinal rights of less importance than those to liberty, which may be considered as consequences either of it or of the right to law. All of these have been preserved, and many of them amplified, in our Constitutions; while hardly a new one is added, unless it be the right to reputation, which, indeed, Blackstone mentions as a cardinal right, and the recently felt notion of right to privacy (this is recognized in a very striking manner in the Constitution of Washington '), and the provision against imprisonment for debt which appears in the Massachusetts Body of Liberties and in a few State Constitutions. But most important of all, the principle against class legislation found in the Virginia Bill of Rights (Clause 4), "That no man or set of men are entitled to exclusive or separate emoluments or privileges from the community," the Fourteenth Amendment, § 1, that "no State State .. shall deny to any person within its jurisdiction the equal protection of the laws," and much more definitely expressed in the State Constitutions; an American principle, for the great clause of Magna Carta, extending the law of the land to all, is no guaranty against class legislation contained in an Act of Parliament. Closely allied to this is the provision against hereditary privileges, titles of nobility, etc., contained in both State and Federal Constitutions, and deemed of such importance that it is forbidden in the Federal Constitution to the States. It is difficult to see how the provision in the North Carolina and other Southern Constitutions against hereditary privileges is consistent in principle with that extending an hereditary right to vote. Equal law is furthermore extended to all races and sexes." American Constitutions, of course, prohibit slavery, but so, in modern times, does the English. A striking statement of the principle of equality 5 Fourteenth Amendment; Book III, §§ 20-21.

2

1 See Book III, § 71.

2 See Book III, §§ 16, 395.

3 See Book III, § 17.

See Book III, § 246.

3

• Book III, §§ 23-27.

before the law will be found in the Massachusetts Body of Liberties, Clause 2.1

The principle of equality by birth declared in the Virginia Bill of Rights and the Declaration of Independence is not carried into the Federal Constitution, though it is found in nearly all State Constitutions.2

The right to bear arms was inherent in the English people; in fact, under early laws, was compelled. The barons were required to support their king in war but they early complained against being led out of the kingdom, and King John's insistence upon this was the principal cause leading to Runnymede. This right is expressed in every American constitutional document as well as all the State Constitutions. On the other hand, the objection to mercenaries or standing armies seems to have always existed. There were practically none in England until the time of the Stuarts, (though Italian and German-"Brabazon” — mercenaries were first employed in 1449, to suppress Jack Cade) a cause to which most students of constitutional history attribute the preservation of English freedom and parliamentary government.

The objection to the use of the army to establish military tribunals or to overawe the people is apparent in a long range of constitutional documents and statutes. Correlative to this, but having its source also in the right to the common law, are many statutes in early times protesting against the laws of the Forest; also the general prohibition of martial law, the English and American principle being that the military must never be independent of or superior to the civil power.3

The militia, the ancient defence of the realm, we find revived only seventeen years after the conquest; and the support of the militia, or even of the army and navy, is therefore entrusted to the legislative branch both in our Federal and in the State governments, their command only entrusted to the Executive, but his use of the army is carefully limited to definite emergencies (invasion, insurrection, etc.); and, as between the State and the Federal power, the President cannot employ the State militia but in a national emergency, nor Federal troops in a State except when requested thereto by the legislative authority thereof save, indeed, where necessary to maintain the functions or officers of the Federal Government, or when

1 See Book II., Constitutional Principles.

2 See Book III, § 11.

3 See Declaration of Independence, Clause 16.

the State Government ceases to be republican in form; but of that it does not appear from the Constitution whether Congress or the President is to be the judge.

These three principles will be found recognized in every one of our constitutional documents, both English and American, and in all the State Constitutions. Even military law, the necessary regulations for the government of the army and navy in actual service, is only made possible in England by an annual re-enactment of the Mutiny Act, and the same effect is secured in the Federal Constitution by the provision that Congress may make no appropriation for the army for more than two years. The right to bear arms, however, does not prevent laws for the punishment of carrying concealed weapons, nor does it authorize bands of men not belonging to the militia to drill or parade armed, while the recent provisions in some new State Constitutions against "Pinkerton" men, or the employment of private armed guards, is curiously reminiscent of the earlier English statutes against "retainers." 2

Of the other rights which are common to the English and American Constitutions, freedom of speech may be first mentioned, which arose very early as to members of Parliament or debates in Parliament; but is perhaps not otherwise a right recognized in the English Constitution except so far as involved in the political right of assembly and petition, for which see later. It is recognized as a general right, however, in the First Amendment to the Federal Constitution and in all the State Constitutions. Freedom of speech, in political matters at least, is, however, established in England, and freedom of the press even more definitely, so that a man is able to write what he will on all subjects, being only responsible for libellous matter. There is generally no distinction between the two rights made in American Constitutions.3

The important political right of assembly and petition is rather the original than a derivation from freedom of speech, and is also related to the general political rights of the English subject. It is recognized first clearly in the Bill of Rights, and generally in American Constitutions, and forms an indispensable part of the political liberty enjoyed by the Anglo Saxons. Indeed this, with the right to bear arms, has always been the essential difference which has

1 See Book III, §§ 62, 63, 290–295; Book II, Constitutional Principles.

See Book III, § 63, note 5.

1.

See Book III, §§ 60, 61.

• See Book III, § 64; U. S. C. Amt.

attended revolutions or popular reforms in England from other European countries. The other political rights are mainly the great right of equal representation in the legislative assemblies, with correlated provisions for free elections and for the judgment of disputed elections by the legislative body itself, not by the Executive, nor even, unless the Legislature so will, by the courts. The requirement that elections shall be free appears in the Statutes of the Realm as early as 1571, but is finally embodied in the Bill of Rights as well as in the Virginia and Massachusetts Constitutions. There appears to be no English constitutional principle respecting the right of suffrage, which, from having been early shared in by all freemen, was in 1429 limited to the forty shillings freeholders; but it is carefully provided for, to a limited extent saving property rights, in the Virginia and Massachusetts Bills of Rights; and in the Federal Constitution, providing that all electors who vote for the lower house of the State Legislature shall vote for the President; and as to race distinctions, or even educational or property qualifications, in the Fifteenth and Fourteenth Amendments respectively. Hardly any property and few educational qualifications remained in the State Constitutions a few years ago; but there is a tendency to re-impose them.2

Having thus established the right of the people to be represented in a legislative body and having established in effect the right of that body to participate in all law-making and to originate all laws imposing taxes, it only remained for our ancestors to prevent the suppression of the legislative body by the Executive, or "personal government" attempted without the Parliament or without calling the Legislature together. This principle first appears in the statutes in 1330 and is embodied in the English Constitution in the Bill of Rights, and in the Federal Constitution, Art. I, § 4, requiring annual sessions of Congress.

The important new American principles of government, the separation of the powers, and the effect of the written constitution on statutes, have been discussed in an earlier chapter. The former principle appears in the Federal and in all the State Constitutions with the striking exception, to which attention was called in a recent decision of the Court of Appeals of that State, of New York. The expression of it in the Virginia Bill of Rights is interesting; and they attempt to engraft upon it the possibly more debatable prin1 See Book III, § 270. 2 See Book III, §§ 240, 245, 246.