bear arms shall not be infringed." The English Bill of Rights permits only those who are Protestants to "have arms for their defence."

The third amendment provides that no soldier in time of peace shall be quartered in any house without the consent of the owner. This corresponds with a provision in the English Petition of Rights passed by Parliament and approved by Charles I. in 1628. The only provision in the English Bill of Rights bearing on this subject is, that a standing army shall not be kept within the kingdom without consent of Parliament.

The fourth amendment relates to the right of search or seizure, and requires all warrants for arrest or search to be specific, and supported by oath. There is no corresponding clause in the English Bill of Rights.

The fifth amendment requires all criminal indictments to be made by a grand jury; and provides that no person shall for the same offence twice be put in jeopardy of life or limb; nor be deprived of life, liberty, or property without due process of law. The nearest corresponding provision in the Bill of Rights is that contained in the eleventh clause, suggesting "That jurors ought to be duly impanelled and returned," instead of being creatures. of the judge or prosecutor.

The sixth amendment gives the accused the right of a speedy trial before witnesses in criminal cases.

The seventh amendment assures the right of trial by jury. It appears from Olaus Wormius that this system was first introduced into Denmark by Regnerus, surnamed Lodborg, who began to reign in the year 820, from whom Ethelred of England is said to have borrowed it. It was Henry II. who brought into general use in England the trial by jury, afterwards incorporated in Magna Charta and confirmed by King John.

The eighth amendment is a counterpart of the tenth provision of the English Bill of Rights, prohibiting excessive bail or fines, or cruel and unusual methods of punishment.

The ninth amendment states that the enumeration in the Constitution of certain rights shall not be construed as a denial or disparagement of others "retained by the people." This, of course, would be an anomaly in the constitution of a monarchical government, where all rights possessed by the people have first to be granted by the supreme power, the Crown.

The tenth amendment reserves to the States and to the people all powers not delegated to the general government.

A comparison of all these amendments with the English Bill of Rights, therefore, shows that one only out of the ten is copied from the charter of British constitutional privileges. Nearly all the amendments show in themselves that they were devised and worded to meet conditions which were either pertinent or peculiar to American life and experience. To a large extent they form an embodiment of certain features of the common law as it had been applied in America to American conditions for more than a hundred years before 1787. The provisions for free speech, a free press,

freedom of religion, freedom to bear arms, freedom from unwarranted search or seizure, freedom from indictment on secret information, and freedom from the usurpation of the people's natural rights, were all of American origin. They were attached to the Constitution because Americans had learned by bitter experience, in the century between the enactment of the English Bill of Rights and the adoption of the American Constitution, that their absence from the British charter led to numerous abuses and perversions of justice on the part of imported judges and governors.

In short, the difference between the British and the American Constitutions is a fundamental one. The former is a concession of privileges to the people by the rulers: the latter, a grant of authority by the people to the rulers.

But before leaving our original Scotch commentator, let us see just what his views were on the question of the kinship between the British and American Constitutions. Some expression of these views is to be found in No. lxxxiv. of the Federalist :

The several bills of rights, in Great Britain, form its constitution.

It has been several times truly remarked, that bills of rights are, in their origin, stipulations between kings and their subjects, abridgments of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was Magna Charta, obtained by the barons, sword in hand, from King John. Such were the subsequent confirmations of that charter by succeeding princes. Such was the Petition of Right assented to by Charles the First, in the beginning of his reign. Such also was the declaration of rights presented by the Lords and Commons to the Prince of Orange in 1688, and afterwards thrown into the form of an act of Parliament, called the Bill of Rights. It is evident, therefore, that according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing; and as they retain everything, they have no need of particular reservations. "We, the People of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution for the United States of America." This is a better recognition of popular rights than volumes of those aphorisms which make the principal figure in several of our State bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government.

While it may be a fact that the New England members, and especially the Massachusetts members of the convention, were imbued with the truly English idea of uniting the executive and legislative branches by making the executive head merely the creature of the legislature," yet that this plan was not adopted is perhaps due to the efforts of those members whose birth or training had not been such as to bring them into accordance with English traditions. The idea of a representative form of government was novel to the men from New England, and contrary to their accustomed methods; so that from the date of the first gathering it took several days' time to win them over

to it. James Wilson, the Pennsylvania Scotsman, led in the opposition to the English and New England plan of vesting the executive power mainly in the legislature; and to say, as Mr. Fiske does, that Wilson did not know at what he was aiming is to belittle the intelligence of the convention's clearest mind. The chief contribution of New England was the essentially English suggestion of compromise. The conditions under which one of these compromises was made were so unwise, though so characteristic of the typical English commercial spirit actuating its promoters, as to make it a matter of doubt whether on the whole the evil consequences arising from the compromises were not greater than the benefits which they secured. These conditions involved the demand for special privileges by the shipping interest of New England, and the prohibition of a tax on exports, coupled with the recognition of the right of the southern states to continue for twenty years the importation of negroes, and to maintain indefinitely the institution of slavery. A bargain was made between the two sections, and all three propositions were carried by the united votes of New England and all the southern states save Virginia.

Certainly, the one republican institution which forms the chief glory and boast of New England, that of local self-government, cannot be clearly traced back to England. Where it did originate is a disputed question. Mr. Douglas Campbell, in his inquiry into the origin of certain American institutions, has traced the beginnings of many of them to Holland. While there is some doubt as to the sufficiency of his proof in the case of township organization," he has at least made it apparent that at the time the Pilgrims left Holland that country and its institutions were infinitely more analogous to the government established at Plymouth than to any like institutions in England." In concluding his review of some of the Dutch contributions to America, Mr. Campbell sums them up as follows":

Such are the leading institutions, political and legal, for which the American Republic is indebted, directly or indirectly, to the Netherland Republic, itself the heir of all the ages. Some of them, especially our written constitutions, have been greatly improved upon; but at the time of their introduction into America few, if any, of them could be found in any country of Europe except the Netherlands. Having completed our sketch of their history, let us now bring them together, in order that we may appreciate their combined importance.

First comes the Federal Constitution, a written instrument as opposed to the unwritten English Constitution. Next are the provisions of this instrument placing checks on the power of the President in declaring war and peace, and in the appointment of judges and all important executive officers. Then comes the whole organization of the Senate a mutable and yet a permanent body, representing independent bodies politic, and not caste in State and Church. After these features of the national system, but not less important, follow our State constitutions, our freedom of religion, our free press, our wide suffrage, and our written ballot. With these come the free schools, for boys and girls alike, the township system (with its sequence of local self-government in county and State), the independence of the

judiciary, the absence of primogeniture, the subjection of land to execution for debt, and the system of recording deeds and mortgages. Added to these are our public prosecutors of crime in every county, the constitutional guarantee that every accused person shall have subpoenas for his witnesses and counsel for his defence, the reforms in our penal and prison system, the emancipation of married women, and the whole organization of our public charitable and reformatory work.

Taking these institutions all together, is there any cause for wonder that they excite astonishment among modern English scholars and statesmen who, looking beneath the mere surface resemblances of language and domestic habits, seek an explanation of the manifest difference between the people of England and a people in the United States assumed by them to be of the same blood? These observers, unlike some of our American writers, see plainly enough that our institutions are not inherited from England, however much we may have of English characteristics.

The simple fact is, that the whole theory of society and government in the two countries has always been radically different. Under such conditions, it was but natural that our forefathers should turn for their precedents, not to a monarchy or an aristocracy, but to a republic-a republic which was the beacon-light of the English Commonwealth, and whose people were our warmest unselfish sympathizers throughout the Revolution, as they also proved themselves to the Union cause during our late struggle for a national existence.

The latest writer on the subject, Mr. Sydney George Fisher, in his book on The Evolution of the Constitution of the United States, takes issue with Mr. Campbell and with all other writers who attribute the origin of American institutions for the most part to European influences. In an exhaustive examination of early trading and colonial charters and laws, he presents a great many facts tending to prove that the American system of government is not copied from others at all, but is the result of a slow and gradual period of evolution and growth which took place on this continent for two hundred years after 1584. This is both a philosophical and a satisfactory explanation of the origin of our institutions, and Mr. Fisher's book goes far toward making the reader believe that it is also the true one. In referring to English sources of the Constitution, this writer says "o:

After reading the assertions of learned writers that our Constitution was modelled on the British government as it existed in 1787, I have sometimes turned to the words of the Constitution to see the resemblance, and have never been able to find it. As one reads along, sentence after sentence, everything seems so un-English and so original and peculiar to our own locality that the mind is forced to the conclusion that it either grew up as a natural product of the soil or was invented offhand-struck off at a given time, as Mr. Gladstone says. I recommend to those who believe in the British model theory to adopt this simple plan: Read our Constitution, sentence by sentence, from beginning to end, and see how many sentences they can trace to an origin in the British government.

I do not deny that in a certain sense it is all English. . . . I would be the last person in the world to dispute the Anglo-Saxon influence in our civilization. But all this is very different from the dogma some wish to

establish, that our Constitution was taken or copied from or suggested by the forms of the British government as it existed in 1787. . . .

In the first eleven amendments to the Constitution, a number of the provisions about trial by jury and freedom of speech were doubtless evolved from the experience of the race in England. But even these, as already shown, were worked out slowly and re-evolved on American soil. In the body of the Constitution itself-the political framework proper- there is little or nothing that can be traced to the forms of the British government as it existed in 1787 or at any other time for hundreds of years previous.

I do not deny that the framers of our Constitution considered and discusssed the forms of the British Constitution. But they considered them principally, as the minutes of their debates will show, for the purpose, or at any rate with the result, of avoiding them. They were intelligent men,-a large number of them were college-bred, and they discussed the forms of government of all countries. They were not unmindful of the example of Holland, the democracies of Greece, the Roman republic and empire, and the free republics of the Middle Ages. They took what light they could from them all; and I think as good an argument could be framed to show that they were guided by what they knew of classic antiquity as could be brought forward to prove that they were guided by the British Constitution.

But the foundation for all their final decisions, the basis which the forms of government in Europe merely illustrated or made more certain, was their own experience of nearly two hundred years with the colonial charters and constitutions and the constitutions of 1776. What they took from England went back through that two hundred years, and then not to the British government, but to the forms of the old trading charters. What had been envolved from the trading charters had been so long with us that it was completely Americanized, and it was valued by the framers of the Constitution for that reason, and because it had been tested by two hundred years of American life.

They did not commit the absurdity of skipping those two hundred years of their history, or of crossing an ocean and entering other countries to copy constitutions. . . . They took their own experience as it was up to that date in the place and community for which they were making a frame of government. They made no skips or jumps, but went backward in the past directly from themselves and in their own line, taking for their guide that which was nearest to them and latest developed, provided it had been tested in that line of their own past.'

21

NOTES TO CHAPTER II.

1 Douglas Campbell, The Puritan in Holland, England, and America, vol. ii., pp. 481, 487, 488.

Bancroft speaks of him as the ablest man south of the Potomac.

3 Marshall's mother was of the Scotch family of Keith.

See Autobiography of John Trumbull, p. 12. New York, 1841.

"On the twenty-seventh of May [1776], Cary from the committee presented to the [Virginia] convention the declaration of rights which Mason had drafted. For the next fortnight the great truths which it proclaimed, and which were to form the groundwork of American institutions, employed the thoughts of the convention. One clause only received a material amendment. Mason had written that all should enjoy the fullest toleration in