PART II

RISE OF AMERICAN INSTITUTIONS

CHAPTER III

SOURCES OF AMERICAN INSTITUTIONS

"Yet, after all deductions, it [the Constitution] ranks above every other written constitution for the intrinsic excellence of its scheme, its adaptation to the circumstances of the people, the simplicity, brevity and precision of its language, its judicious mixture of definiteness in principle with elasticity in details. . . . The American Constitution is no exception to the rule that everything which has power to win the obedience and respect of men must have 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 that Constitution that is absolutely new. There is much that is as old as Magna Charta." BRYCE, "American Commonwealth," Vol. I, p. 25.

"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." Stamp Act Congress, 1765, "Declaration of Rights and Grievances."

English Background.-In 1728 the Massachusetts assembly said it was the "undoubted right of all Englishmen, by Magna Charta, to raise and dispose of money for the public service, of their own free accord, without compulsion." English, French, Dutch, Scandinavians, Germans, and other people settled the original thirteen colonies; but it was the English language that survived and prevailed. So too with the institutions of government:

English institutions took root and survived. And when the colonists revolted, it was because their English rights were being trampled upon. The Revolutionary War was not a war of Americans against Englishmen, but a war of English against English, Englishmen fighting for certain principles of constitutional government against Englishmen fighting for certain mistaken principles of absolute government. And our victory was a victory for constitutional government on both sides of the Atlantic.

It is interesting to notice some of the free English institutions of government that have come down to us.

English Precedents of Free Government.-On June 15, 1215, a date which will never be forgotten, the Archbishop of Canterbury and some twenty sturdy barons met King John on a little island in the Thames called Runnymede, about fifteen miles above the city of London. Here the king was forced to acknowledge the rights of his people, "ancient rights" as they were even then called, and to assent to the.Magna Charta. This "Great Charter," with the stone seals of the king and barons, may be seen in the British Museum to this day. The principles of this great document have come down to us through seven hundred years of time, and to-day enter into our own Federal and State constitutions. True, at first they were but dimly seen, and indeed were often temporarily eclipsed, but to-day they shine forth as clear as the sun.

Of the sixty-three provisions of Magna Charta, the following are the important ones in our system of govern

ment:

Taxes (no taxation without representation).—“No scu

1

tage 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;

Jury Trial. "No free man shall be taken or imprisoned or disseized, or outlawed, or banished, or anyways

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PART OF MAGNA CHARTA

The document is too wide to show full width. The portion shown above is the upper left corner, beginning with the Latin words for "John, by the grace of God, King of England, Lord of Ireland, Duke . . .

destroyed, nor will we pass upon him, nor will we send upon him, unless by the lawful judgment of his peers, or by the law of the land."

1 Scutage: Military tax, paid in money instead of service.

2 Aid: A feudal tax paid by the vassal to his lord.

3 Disseized: Dispossessed.

Peers: Equals; persons of the same rank.

Personal Rights.-"We will sell no man, we will not deny to any man, either justice or right."

"No bailiff from henceforth shall put any man to his law upon his own bare saying, without credible witness to prove it."

Property Rights.-"No constable or bailiff of ours shall take corn or other chattels of any man, unless he presently give him money for it or hath respite of payment by the good will of the seller. . . . Neither shall we, or our bailiffs, take any man's timber for our castles or other uses, unless by the consent of the owner of the timber."

Due Process of Law. "If any one has been dispossessed or deprived by us without the legal 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."

Petition for Redress of Grievances."The barons may chose five and twenty barons of the kingdom, whom they think convenient; who shall take care, with all their might, to hold and observe, and cause to be observed, the peace and liberties we have granted them, and this by our present charter confirmed; so that if we . . . shall in any circumstances fail in the performance of them toward any person, or shall break through any of these articles of peace and security, and the offense shall be notified to four barons chosen out of the five and twenty before mentioned, the said four barons shall repair to us . . ., and laying open their grievance, shall petition to have it redressed without

Govt. No. Dak.-3

delay; and if it be not redressed by us . . . within forty days... the said five and twenty barons, together with the community of the whole kingdom, shall distrain and distress us in all possible ways, . . . till the grievance is redressed according to their pleasure."

In working out the principles expressed and foreshadowed in Magna Charta-and a five hundred years' struggle it was the people of England made two contributions of priceless value to mankind: (1) Representative Government and (2) The Common Law. We may conclude our account of the sources of our own institutions by describing briefly the development of these two landmarks of human liberty.

Representative Government.-Magna Charta speaks of the Great Council of the king which should be summoned in case taxes were to be imposed on the people. This was a good beginning, much better, indeed, than allowing the king to make personal and arbitrary levies of taxes. But even this beginning was stubbornly resisted by later kings. In time, however, the king summoned to his Parliament (as it began to be called) a certain number of “knights," that is, men not members of the nobility, men without title. These "common" men later formed the House of Commons, and from then on Parliament had two houses, the House of Lords and the House of Commons. When the common people began to elect members of the House of Commons, we may say that representative government was on its feet in England. But as the House of Commons grew strong, the king grew weak. "When two men ride on horseback, one must ride behind." Who shall rule England,