title: The fundamental law of American constitutions,
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O’ o > > V .1"”- O' .9~ .•Vf, > \> , v 1 V -Hop?/ ^-V, °Jlf|P. ; V. ” , » A * • * A y %* '**• <A *••** jfi &, *'..■ V •l!L # ***o 4 * .•*'•• ,0^ *•*•* ^O > V .*'< '* +* 0 t *^d> * % ••'* A° V. c\ ,o »*v % *> •••••*/ % •••*- ^ v * % <& ''M/>h° ^ «£ »*d^'- ^ oaA^ • ^xS»^y//U 9 ^e\CP • ** ’< A/ ^ . 0 " « k • « THE FUNDAMENTAL LAW OF AMERICAN CONSTITUTIONS % BY A FRED A. BAKER Of the Detroit Bar and Lecturer on Constitutional Law and History in the University of Detroit. Vol. I. First Impression PRINTED FOR THE AUTHOR BY RECORD PRINTING CO., DETROIT, MICHIGAN. 1915. .S3 Copyright, 1915, BY FRED A. BAKER. MAR 29 1915 ©CU39731 2 Ko t PREFACE. In writing these lectures it has been my constant endeavor to pro¬ duce an elementary work for the use of students at law and other beginners in the study of constitutional law and history. To do this with any hope of even a small degree of success, it was necessary to proceed according to the requirements of a logical analysis and gradual development of the subject, and to avoid general history except so far as necessary to understand the great constitutional docu¬ ments and events which mark epochs in the origin and growth of the constitutional law of the United States. If these lectures were intended for advanced scholars and profes¬ sional experts, it would have been a useless waste of space to have included the full text of Magna Carta, the Petition of Right, the Bill of Rights, and other statutes and instruments of constitutional import, but to those who are taking their first lessons, the full text is of the highest importance, as but few can have recourse to the numerous publications where the originals can be found. Documentary history is the most instructive part of our subject, coupled as it is, with the services of such distinguished characters as Stephen Langton, Simon de Montfort, Edward Coke, John Hampden, James Otis, Alexander Hamilton, James Madison, and others to whom reference is made in the following pages. Modern research by such great historical scholars as McKechnie, Maitland, Stubbs, Pollock, Medley and others in Great Britain, and Hannis Taylor and George Burton Adams in America, has made the study of constitutional history more interesting and valuable than ever before; and it is not too much to say that every American citizen should become familiar with the subject, and have as good an understanding as each is capable of attaining of the fundamental principles of our written** constitutions. The increase in population by successive generations of children, with the addition of a large influx of the foreign born, coupled with manhood suffrage, and in a number of states with female suffrage, is a serious element of danger, if it is not counteracted by a more thorough instruction in the history of institutions and the essential elements of constitutional liberty. Some competent person should write a primer on constitutional law, for universal use in the schools and colleges, and which would be of great benefit, if it were on the evening table of every American home. Not competent to write such a primer, my effort has been to pro¬ duce such a work as I would like to have had when a studenat at law, and if a few of those who are seeking to fit themselves for the legal profession find it of some use to them, my highest expectations will be realized. My prayer is that some of the young men who have listened to these lectures, or into whose hands they may happen to fall, will write more entertainingly and instructively than I have been able to do. Representative taxation and legislation with power in the courts to enforce the fundamental law, is the best system of government civilized men have ever known, and all attempts to discredit it should meet with strong and persistent opposition. F. A. B. Dec. 15, 1914. CONTENTS. Introductory. Importance of constitutional law in the United States— Constitutional law of a political nature, and constitutional law of judicial cognizance—The study of constitutional law—The division of the constitutional law of the United States into six different subjects—The sovereignty of the people—the divi¬ sion of the powers of government into three co-ordinate branches—the legislative—the executive—the judicative— the reign and rule of law—Illustrations from the constitutional provision prohibiting unreasonable searches and seizures and general warrants.—P. 1. I. The Sovereignty of the People. The elective franchise and its representative nature— Guizot’s classification of governments—Popular assemblies of the ancient Germans as described by Tacitus—Township gov¬ ernments in the United States—Restrictive statute of British Parliament of 1774 (14 Geo. Ill. c. 45, sec, 7)—Democracy and representative government inseparable — Immutable nature of the fundamental law—Easy methods of amending constitutions objectionable*—Initiative and referendum con¬ demned.—P. 19. II. Division of Powers. Virginia constitution of 1776 and the Massachusetts con¬ stitution of 1780 divide their state governments into three departments, the legislative, executive and judicative—The constitution of the United States is to the same effect—And so are all the state constitutions—But nearly all of these con- ii. stitutions give the executive a qualified negative on the legisla¬ tive—Review of authorities.—P. 41. III. Division of Powers. (Continued.) Survival of doctrine that fixing rates is a legislative func¬ tion—A Virginia case—Common law remedies abolished by- interstate Commerce Act—Ministerial power not the same as executive—Whether under the Michigan Constitution of 1908, an act of the legislature is to take immediate effect or not is a legislative and not a judicial question.—P. 63. IV. The Legislative. The origin and development of the great constitutional doctrine, that the power to tax and to legislate, can only be exercised by a legislature, one house of which must be directly and immediately elected by the people—Charter of Henry I. —The events which led to Magna Carta—Archbishop Lang- ton’s great services in advising and encouraging the Barons.- P. 85. V. The Legislative. (Continued.) Full text of Magna Carta as translated by McKechnie— Comments thereon—The importance of obtaining a good understanding of the Great Charter as a starting place in the study of constitutional history and law.—P. 109. iii. VI. The Legislative. (Continued.) Statute Confirmationes Chartarum—Statute De Tallagio non Concedendo—14 Edward Ill., Stat. 2—Petition of Right. P. 127. VII. The Legislative. (Continued.) The Ship-Money case, 1 Hargraves State Trials 508—2 How. State Trials 826—Speech of the Lord Keeper showing the case submitted by the king to the judges—The judge’s answer—Argument of Oliver St. John for Mr. Hampden— Argument of Solicitor General for the King—Argument of Mr. Holborne for Mr. Hampden—Argument of Attorney- General for the King.—P. 147. VIII. The Legislative. (Continued.) The Ship-Money case of King v. John Hampden—Opin¬ ions of the judges—Seven for the King—Five for Hampden— Three of the five on technical grounds—Review of the opin¬ ions.— P. 175. IX. The Legislative. (Continued.) The Ship-Money case—The judgment of the judges in favor of the King reviewed by the House of Lords—Judgment iv. of the House of Lords reversing the judgment of the judges— Act of Parliament declaring ship-writs illegal—Impeachment of the judges—Impeachment of the Earl of Straford and the Archbishop of Canterbury, and their execution under bills of attainder—Trial and execution of Charles 1.—Constitutional documents of the Commonwealth and the Protectorate.— P. 201. X. The Legislative. (Continued.) Reigns of Chas. II. and Jas. II.—Test Acts of 20 Chas. II., c. 2; 30 Chas. II., c. 1 ; 3 Jas. I., c. 4; 1 Eliz. Stat. 1, c. 2; 1 William and Mary, c. 8—Jas. II. continues customs duties by proclamation; establishes an Ecclesiastical Commission—Case of Godden vs. Hales, 1 1 St. Tr. 1 163—Declaration of Indul¬ gence—Case of the Seven Bishops—Prince of Orange takes possession of London—Convention Parliament of 1 688-9— Bill of Rights—Provisions of American constitutions securing religious liberty—Constantine’s Edict of Tolerance of A. D. 31 3 —P. 223. XI. The Legislative. (Continued.) The legislative in the English colonies in America—The Virginia Company of London—The Virginia Company of Plymouth in England—Colony of Massachusetts Bay—Prov¬ ince of Carolina—Grant of New Hampshire—Charter of Rhode Island—Charter of Connecticut—Grant of Chas. II. to Duke of York—Grant of New Jersey by Duke of York- Forfeiture of Charter of Massachusetts Bay and grant of new Charter by William and Mary—Grant of Pennsylvania to V. William Penn—Grant of Delaware by AVilliam Penn—Charter of Georgia—The case of the Island of Grenada—The First Constitution of Virginia—Sir Edwin Sandys—Compact on the Mayflower.—P. 245. XII. The Legislative, (Continued.) The legislative power cannot be delegated—Acts of 31 Henry VIII. authorizing the King to legislate by proclamation —Opinion of the judges that the proclamations of the King are not law—Ordinance for the government of the territory northwest of the river Ohio—Provisional executive govern¬ ments with legislative power in the Territories of the United States—The steady progress of representative government from the Atlantic to the Pacific and to the insular possessions of the United States.— P. 267. XIII. The Legislative. (Continued.) The Treaty with Spain ceding the Philippine Islands, Porto Rico and Guam to the United States—Should the Philippine Islands be given their independence?— P. 289. XIV. The Legislative. (Continued.) The New York Charters of Liberty of 1683 and 1691 — Objections on which the Duke of York as Jas. II. annulled the act of 1 683—Adverse report of Lords of Trade on which William III. repealed the act of 1691 —Legislative forms.— P. 305. CITATIONS. Page Attorney General v. Lindsey, 178 Mich. 524. 75 Brig Aurora, 7 Cranch 382. 51 Campbell vs Hall, Cowp. 204. 255 Chicago, etc., R. v. Minnesota, 134 U. S. 418. 57 David v. Faines, 48 Ark. 375. 81 Detroit & Mackinac Ry. v. Mich. R. Com., 178 Mich. 230. 71 Don Moran v. People, 25 Mich. 356. 77 Ensworth v. Curd, 68 Mo. 282. 81 Entick v. Carrington, 19 St. Tr. 1030. 17 Feek v. Township Board, 82 Michigan 393. 53 Field v. Clark, 143 U. S. 649. 53 Georgia R. Co. v. Smith, 70 Ga. 694. 56 Godden v. Hales, 11 St. Tr. 1165. 226 Hayburn’s Case, 2 Dal. 409. 45 In re Sanborn, 148 U. S. 222. 49 Int. State Com. Com. v. Ry. Co., 167 U. S. 479. 59 Int. State Com. Com. v. Louis. & Nash. R., 227 U. S. 88. 73 Johnson v. Comrs., 107 Ind. 15. 81 King v. Hampden, 3 St. Tr. 826. 175 Leach v. Money, 19 St. Tr. 1001. 17 Louisville & Nash. R. v. Garrett, 231 U. S. 298. 66 Mich. Cent. R. v. Powers, 201 U. S. 245. 69 Mich. Cent. R. v. Mich. R. Com., 160 Mich. 355. 70 Mich. Cent. R. v. Circuit Judge, 156 Mich. 459. 71 Mississippi v. Johnson, 4 Wall 497. 70 Munn v. Illinois, 94 U. S. 1 1 3. 54 Owners of Lands v. People, 1 13 Ill. 296. 81 Pingree v. Auditor General, 120 Mich. 93. 69 Prentiss v. Atlantic Coast Line, 2 1 1 U. S. 2 I O'. 65 Railroad Comrs. v. Yazoo, etc., R., 62 Miss. 607. 56 Railroad Com. Cases, 116 U. S. 307. 56 Robinson v. Miner & Haug, 68 Mich. 549. 13 Sanitary District v. Ray, 199 Ill. 63. 81 Seven Bishops Case, 12 St. Tr. 183. 229 Ship-Money Case, 3 St. Tr. 826. 148 State v. Chicago, etc., R., 38 Minn. 281. 56 State v. County Court, 50 Mo. 37. 81 State v. Hitchcock, 1 Kan. 178. 81 Texas, etc., R. v. Abilene, etc., Co., 204 U. S. 426. 68 Toepel’s Case, 139 Mich. 85. 49 United States v. Ferriera, 13 How. 40. 46 United States v. Todd, 13 How. 52. 46 Wilkes v. Wood, 1 9 St. Tr. 1 1 58. 17 « INTRODUCTORY. Importance of constiutional law in the United States. Constitutional law of a political nature, and constitutional law of judicial cognizance. The study of constitutional law. The division of the constitutional law of the United States into six different subjects: The sovereignty of the people, the divi¬ sion of the powers of government into three co-ordinate branches, the legislative, the executive, the judicative, the reign and rule of law. Illustrations from the constitutional provision prohibiting unreasonable searches and seizures and general warrants. "Constitutional Law” in its broadest and most general meaning has been described as signifying “A system of fundamental rules and principles for the government of a State, defining the relations and powers of the different parts of the government as between one another and as between the government and the governed.” Constitutions are either unwritten, partly written or wholly written. The English constitution is usually re¬ garded as unwritten, but there are certain great statutes like Magna Charta, the Petition of Right, the Bill of Rights, and others which are of a constitutional nature, so that it is more correct to say that the English consti¬ tution is partly written and partly unwritten. Our American constitutions are wholly written, with this qualification, that some of their principles are implied or assumed to be inherent in our form of government, al¬ though not expressed or at least not affirmatively ex¬ pressed, by any written provision. The main difference between the English constitution and our American con¬ stitutions is that the English constitution can be changed by an act of Parliament, but in the United States the 2 legislative authority has no such power, and our consti¬ tutions cannot be altered except in the manner therein provided. No court in England has power to declare an act of Parliament unconstitutional, but in this country the courts have power to declare acts of Congress or state legislatures void, because in conflict with the fed¬ eral constitution or with the state constitution. The importance in the United States of a knowledge of constitutional law cannot be overestimated. The constitution of the United States is the supreme law of the land, and subject to the limitations, imposed by the federal constitution, the constitution of each state is the supreme law of the state. The supreme law modifies, qualifies and regulates all other law; it controls all judicial, legislative and execu¬ tive proceedings and actions ; it is of the highest value, to judges, legislators and executive officers; and it is not too much to say that no lawyer is qualified to practice his profession unless he is well grounded in the funda¬ mental law of his country; without it he is like a ma¬ chine without a balance wheel, or a ship without a rud¬ der. There are two kinds of constitutional law in this country, 1. That kind of constitutional law which is political in its nature and the enforcement of which is not within the jurisdiction of the courts. Thus, the federal courts have no authority to determine the result of a presiden¬ tial election, or an election or appointment to either house of Congress; nor can they decide whether a con¬ stitutional amendment has been legally adopted or whether a republican form of government has been es¬ tablished or exists in any state, or whether a state board of canvassers or a state legislature has correctly deter¬ mined a state election. 3 Into this class are also to be included all those pro¬ visions of our constitutions which relate to the frame¬ work of the government which provide for a senate con¬ sisting of two senators from each state, and that no state shall be deprived of its equal representation therein; which provide for a house of representatives, the mem¬ bership of which is apportioned among the states accord¬ ing to their population; which provide for a president, who, with such subordinate officers as may be provided by law, is to exercise the executive power; which provide for a supreme court, which, with such other courts as may be established by Congress, is to possess the judicial power of the general government. These and many other provisions of our constitutions, both federal and state, are not of judicial cognizance. 2. The second and more important kind of constitu¬ tional law is that which is designed to protect private and public rights, and which it is the peculiar province of the courts to enforce with all the means in their power. Into this class must be included all those provisions called the “Declaration of Rights;” also those which limit or restrict the power of taxation; also those which draw a line of demarkation between the powers of the general government and the powers of the state governments; and between the powers of the state governments and those constitutionally possessed by counties, cities, town¬ ships and villages and school districts; also those which divide our governments into legislative, executive and judicial branches or departments; and numerous other provisions limiting and restraining the governmental power. 4 THE STUDY OF CONSTITUTIONAL LAW. The best way is to read constitutional history as a recreation. Have one of the many works on the subject constantly on the table in the room where you spend your evening hours, and before retiring put your mind in a restful condition by reading a few pages of consti¬ tutional history. It is difficult to form an opinion as to which author a student should begin with. My advice is to first read the constitution of the United States and the constitu¬ tion of Michigan, word for word, from beginning to end, comprehending, understanding and absorbing as much as you can. But you must remember that almost every provision you read has a history back of it, some of it going back beyond the Christian era, and to fully ap¬ preciate the full meaning and force of the different pro¬ visions, wliat is implied as well as what is affirmatively expressed, you must study that history. The constitutional law of the United States divides it¬ self into six different subjects. 1. The doctrine of popular sovereignty. 2. Division of the powers of government into three co-ordinate branches. 3. The legislative. 4. The executive. 5. The judicative. 6. The reign and rule of law. Each’ one of these subjects requires a separate lecture, and some of them many more than one. When reading any of our constitutions, federal or state, have these divisions of the subject in mind, and in that way you will comprehend the scope, the extent and the diversity of the subject and the laboriousness of the work before you. It may be a little tedious at first, but when you get into it you will have more real enjoyment than in the study of any other branch of the law. Having read the constitution of the United States and the constitution of Michigan, it would be advisable to examine the constitutions adopted by the thirteen original states, and by Vermont, the fourteenth state, before the constitution of the United States was framed. In that way you will obtain a good understanding of the kind of constitution makers, the founders of the republic were; of the spirit that actuated them and the principles of constitutional liberty which governed them. Early in the eventful year 1776, New Hampshire (Jan. 5, 1776) and South Carolina (March 26, 1776) adopted temporary instruments of government, to continue until an adjustment of their “unhappy differences” and “unnat¬ ural contest” with Great Britain could be obtained. Virginia has the honor of being the first colony to adopt a constitution severing all relations with the mother country, and with no hope or desire for a recon¬ ciliation. A “Virginia Bill of Bights,” drafted by George Mason, one of the most distinguished of her revolutionary states¬ men, was adopted by a convention composed of the colo¬ nial house of burgesses, June 12, 1776, and the balance of the constitution was adopted by the same convention, June 29, 1776, thereby anticipating the Declaration of Independence five days. The other states followed in the following order: 6 New Jersey, July 3, 1776. Delaware, Sept. 21, 1776. Pennsylvania, Sept. 28, 1776. Connecticut, Oct, 15, 1776. Maryland, Nov. 11, 1776. North Carolina, Dec. 18, 1776. Georgia, Feb. 5, 1777. New York, April 20, 1777. Vermont, July 8, 1777. South Carolina, March* 10, 1778. Massachusetts, March 2, 1780. New Hampshire, June 2, 1784. The colonial charter of Rhode Island was the only constitution of that state until 1842. Connecticut did not do anything more than to adopt a short declaration of rights until 1818. The explanation is that their char¬ ter governments were so democratic that state constitu¬ tions were not necessary to enjoy independence and par¬ ticipate in the Federal Union. Your next duty will be to study “The Federalist.” It consists of 85 Essays, written by James Madison, Alexander Hamilton arid John Jay, all writing under the name of “Publius.” The first, number was published Oct. 27, 1787, and the last number Aug. 15, 1788. These essays were written in support of the constitution, when its ratification by the states was under consideration. From them you can learn what the makers and de¬ fenders of the constitution claimed for it. The constitution met with strenuous opposition, being- opposed by such distinguished patriots as George Mason and Patrick Henry in Virginia, by George Clinton in New York, and by many other able men in the several states. The ratification of the constitution by nine states was required, and a confederacy of nine states ( was possible, but finally all the states ratified, and the Federal Union became complete. The original thirteen states and Vermont ratified the constitution in the following order: Delaware, Dec. 7, 1787. Pennsylvania, Dec. 12, 1787. New Jersey, Dec. 18, 1787. Georgia, Jan. 2, 1788. Connecticut, Jan. 9, 1788. Massachusetts, Feb. 6, 1788. Maryland, April 28, 1788. South Carolina, May 23, 1788. New Hampshire, June 21, 1788. Virginia, June 26, 1788. New York, July 26, 1788. North Carolina, Nov. 21, 1788. Vermont, Jan. 10, 1790. Rhode Island, May 29, 1790. It was a protracted struggle, but the constitution finally won, and it became the supreme law from the national boundary on the north’ to the then national boundary on the south. It was largely due to the per¬ sonal influence and activity of George Washington, the great ability of Alexander Hamilton and James Madison, the wise counsels of Benjamin Franklin, Samuel Adams and John Hancock, and the legal learning of James Wil¬ son and Theophilus Parsons. The main objection to the constitution was that it contained no bill of rights, but that objection was over¬ come by the wisdom and strategy of the friends of the constitution in the Massachusetts convention. They secured a ratification of the constitution, accompanied with a recommendation of amendments to be adopted after the government was organized, providing for a bill of rights. 8 This plan was of great assistance, if it did not actually determine, the controversy in the great states of Vir¬ ginia and New York. To it we are indebted for the first ten amendments, which, taken in connection with the limitations on the general government and on the state governments in the body of the constitution, and the amendments since adopted, we have the greater part of the constitutional law of the United States. In addition we have the limitations imposed in each state by its own constitution; but outside of the frame¬ work of the state governments, and as far as bills of right and the great principles of constitutional freedom are con¬ cerned, the state constitutions and the federal constitution are substantially the same. The difference between the state constitutions and the federal constitution is principally this, that the federal constitution is a grant of power, with limitations, and the first question concerning the validity of an act of Congress is whether it is within any of the powers conferred on Congress by the constitution. On the other hand the state constitutions are framed on the theory that the people of each state, and their legis¬ latures, have full power and authority except as far as their power is restricted and limited by the constitution of the United States and by their own constitutions. The causes which led to the American revolution, and impelled the colonies to fight for independence, and to set up independent state government with constitutions of their own, belong to general history. Like all other revolutions, it was brought about by economic reasons. The trade and commerce of the colonies were being ruined by the restrictions imposed by the British Parlia¬ ment. The acts are known as the Acts of Navigation and Trade and the Molasses Act. Some of these acts had laid dormant for nearly a century, but when it was an- 9 nounced that they would be enforced, it caused great ex¬ citement in the colonies, especially in New England. Obeying instructions from England, the revenue offi¬ cers of the crown in Bostbn made an application to the Superior Court of the colony, early in 1761, for writs of assistance to enable them to search wherever they pleased for smuggled goods, from the cellar to the garret of every house. James Otis, a Boston lawyer from Cape Cod, re¬ signed the office of Advocate-General of the Court of Admiralty, and made his famous argument against the application. Otis was a learned lawyer and a tempestu¬ ous orator, and the way he sailed into the Acts of Parlia¬ ment and Writs of Assistance brought him everlasting fame. He reviewed the acts and contended that so far as they imposed duties for revenue they were unconsti¬ tutional, because not passed or approved by the legisla¬ tive authority of the colony of Massachusetts Bay; he indulged in bitter invective against the tyranny of tax¬ ation without representation, and asserted that the acts of trade did impose ruinous and intolerable taxes; he denounced general warrants as utterly illegal, that there were no precedents for them; and then, in his enthusi¬ asm, he asserted a doctrine that was to become the great characteristic feature of the constitutional law of the United States. James Otis said: “All precedents are under control of the principles of law, and no Act of Parliament can establish such a writ, for an act against the constitution is void.” John Adams, then a young lawyer, was present when Otis made his argument, and undertook to make a report of it, but he became so interested in the information Otis was pouring forth that the notes Adams made were im¬ perfect; however, to the end of his life he could bv recol¬ lection give a more complete synopsis. 10 There is no doubt about the effect of Otis’ argument, not only in Massachusetts but throughout the colonies. Adams not only heard the argument but witnessed its effect, and in after years was wont to say, “On that day the child Independence was born.” When Virginia started the work of making state con¬ stitutions, she put into her Bill of Rights this provision: “That general warrants, whereby an officer or messen¬ ger may be commanded to search' suspected places with¬ out evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particu¬ larly described and supported by evidence, are grievous and oppressive and ought not to be granted.” Delaware, Pennsylvania, Maryland, Vermont, Massa¬ chusetts and New Hampshire, in the order named, fol¬ lowed the example of Virginia; and when the first ten amendments were adopted, as limitations on the general government, the above provision, in fewer words, was in¬ cluded as Art. IV. Now you will find the same provision in the constitution of every state in the Union. This is probably the best way to study constitutional law, that is, to take up each of the more important pro¬ visions of our constitutions, study its history, and ascer¬ tain the occasion and object of it. Here I wish to give you a word of caution. In the United States we have written constitutions; but to a certain extent they are misleading. William E. Glad¬ stone said: “As the British constitution is the most subtle organism which has proceeded from progressive history, so the American constitution is the most won¬ derful work ever struck off at a given time by the brain and purpose of manbut that tribute is also in some respects misleading. Our American constitutions for the more part are merely declaratory of certain fundamental principles of 11 government which are very old, as their origin and devel¬ opment can be traced in history, some of them, from the dawn of civilization. They were immediately derived from the common law and constitution of England, cor¬ roborated and supported by the civil and canon law of the ancient Romans. They have been for a time, and may be again, crushed, and apparently destroyed by fire and sword, but sooner or later they will rise, Phoenix¬ like, from their ashes, and go marching on, shedding their benign influence throughout the world. The Roman empire as a temporality, or secular power, has disappeared, but the civil law has survived, and is today the basic law of continental Europe, and of Lou¬ isiana, one of these United States of America. The same is true of the great fundamental principles of the common law and the constitutional liberty of England. The reason for all this is that fundamental law is the product of justice, truth and reason, and is not depend¬ ent on written constitutions or legislative enactments. Repeal all the written constitutions in the United States, and their fundamental principles would survive; and they would be found to be “law,” in the true sense of that word, in that they are true and right, and, like the laws which control the universe, are immutable, imper¬ ishable and eternal. The fathers of this republic did not invent them, did not cut them out of whole cloth or strike them off; they simply recognized and declared them, and did it in as good and plain English as ever was written. All honor to them; they are entitled to fie revered, respected and eulogized as long as grass grows and water runs. It must not be assumed that the constitutions framed and adopted in the United States were the first attempts 12 at written constitutions. There were many prior efforts in that direction, and in some future lecture I will pass them in review. I will bring this lecture to a close by calling your at¬ tention to another important feature of our written con¬ stitutions. While they are in good English, they have the imperfections of language, and they are based on cer¬ tain assumptions, and take many things for granted. These are the implied restrictions flowing from the ex¬ press provisions of these instruments. Having taken the provision prohibiting unreasonable searches and seizures and general warrants, for one illus¬ tration, I will use it for another. The Michigan constitution says: “The person, houses, papers and possessions of every person shall be secure from unreasonable searches and seizures. No warrant to search any place, or to seize any person or things, shall issue without describing them, nor without probable cause supported by oath or affirmation.” It will be noticed that this provision does not lay down any rule as to when a warrant to search or to ar¬ rest is to be necessary. At the common law, arrests for treason or felony could be made without a warrant, but for misdemeanors and other penal offenses, unless the offense was a breach of the peace in view of the officer, a warrant was necessary. The distinction is based on the fact that the higher offenses are more dangerous to so¬ ciety, and are universally recognized as crimes, while the lesser offenses are not so dangerous to the commun¬ ity, and relate more to the mere vices of the people, and frequently are only wrong because they are prohibited by statute or municipal ordinance. It is a very plain proposition that the provision pro- 13 hibiting general warrants, and warrants without cause shown, assumes that the common law rule requiring a warrant in cases of misdemeanor not breaches of the peace in view of the officer was to continue in force, and was not to be subject to change by the legislature. This is a question that has been a matter of contro¬ versy in the Supreme Court of Michigan. In 1887 the legislature passed a drastic law regulating the liquor traffic, and put into it a section authorizing officers to arrest without warrant for certain violations of the act, which were not of themselves breaches of the peace in presence of the officer. The Supreme Court, in an opinion by Judge Campbell, held this provision unconstitutional. Champlin, Morse and Long, JJ., concurred. Sherwood, J., dissented. As it is an instructive exposition of the law of the constitution on the subject, and shows the kind of con¬ stitutional lawyer Judge Campbell was, I will read from it. {Robinson vs. Miner and Haug, 68 Mich., 549, pp. 55-7-8-9). Campbell, J., says: “Under our system we have re¬ peatedly decided, in accordance with constitutional prin¬ ciples as construed everywhere, that no arrest can be made without warrant except in cases of felony, or in cases of breaches of the peace committed in the presence of the arresting officer. This exception, in cases of breaches of the peace, has only been allowed by reason of the immediate danger to the safety of the community against crimes of violence, and it was confined, even in such cases, to instances where the violence was commit¬ ted in the presence of the officer. There are not many such cases. The common and statute law provide for verv few specified breaches of the peace, and there are none that are not specified. An indictment charging a person as a peace-breaker, and not with any specified 14 crime, would be good for nothing. Assaults and riotous conduct make up the largest part of the list. But there can he no breach of the peace within the meaning of the law that does not embrace some sort of violent as well as dangerous conduct. The manifest purpose of this statute is to bring certain things that are not breaches of the peace within that denomination to avoid the ne¬ cessity of a warrant. But, as already suggested, the con¬ stitution cannot be so evaded. The cases covered by the statute present some peculiar features. No doubt keep¬ ing open places of sale late in the evening may lead to breaches of the peace, and, when they actually occur in an officer’s presence, arrest may be made for that. Most of the acts denominated breaches of the peace by this act are fixed after the regular closing hours at night. An officer arresting without process must, as soon as prac¬ ticable, take his prisoner before the nearest magistrate, where he can be bailed, or examined, or put on trial, as the case may be. But the arrests provided for in this act would necessarily keep the parties arrested impris¬ oned until a magistrate could be found, and probably hold them in durance until the next day at least, and subject them to more than usual annoyance. “It was also held in a number of cases which have been famous in history that no general warrants could lawfully issue at common law, and our constitution has embodied that idea in very clear and express terms. But this statute is practically, if carried out, a general war¬ rant itself, directing all officers to visit houses and busi¬ ness places without other authority, and make searches 15 and arrests, and close np places of business on their own well or ill-founded notion that the law has been vio¬ lated/’ The charter of Grand Rapids, passed in 1885, author¬ ized police officers to arrest without a warrant for vio¬ lation of the ordinances of the city committed in the presence of the officer, although not breaches of the peace. The validity of this provision came before the Supreme Court in 1894, and the court as then consti¬ tuted, in an opinion by Judge Montgomery, held it valid. Grant and Hooker, JJ., concurred; McGrath and Long, JJ., dissented in an opinion by Judge McGrath. Long was the only member of the court who had par¬ ticipated in the prior decision. The result is that nine judges of the Supreme Court passed on the question, and five of them held the legislation unconstitutional, but that does not change the fact that the last decision is authoritative until it is overruled. The truth is, the implications of our constitutions are very important parts of them, and that a person who, in reading them, can only see or comprehend what is af¬ firmatively expressed makes a great mistake. Eliminate the assumptions and implications and our written constitutions would be but little more than skele¬ tons, without vigor, without spirit and without life. In fifteen of the state constitutions trials by jury are secured, but there is no definition or description of the jury. In twenty-three states it is expressly provided that the jury shall be of the vicinage, county or district where the offense was committed. In five states the ver¬ dict of the jury is required to be unanimous, and in four states only is the number of the jury fixed at twelve. In the federal constitution a trial by a jury of the state and district where the offense was committed is required, 16 but the number of the jury and unanimous verdicts are not mentioned. The Virginia constitution of 1776 is the only constitu¬ tion which makes mention of all the elements of a jury trial, viz: “by an impartial jury of twelve men of his vicinage, without whose unanimous consent he cannot be convicted.” When we read any provision of an American constitu¬ tion providing for a jury, it must be assumed that all three elements of a common law jury were intended, viz., twelve jurors, unanimous verdict, vicinage, unless there are express words to the contrary, as there are in a few states. Hereafter I will have something to say about jury trials, only alluding to the subject now to show that in construing a constitution we must dig deeper than the express words of the instrument. Pursuing the course I have indicated, we will mutu¬ ally engage in the study of constitutional law and his¬ tory. BIBLIOGRAPHY.—The Constitution of the United States, and the successive Constitutions of the several states, and the colonial charters which were the constitutions of the English colonies in America, have been (1909) published in seven volumes under the editorship of Francis Newton Thorpe, by the United States Government. Bancroft’s “History of the Formation of the Constitution of the United States’’ was published by Appleton & Co., of New York, in 1882. “The Federalist’’ is in every library, but the most complete and satisfactory edition was published by Lippincott & Co., of Philadelphia, in 1875. Quincy’s Massachusetts Report has an appendix, by Horace Gray, when a member of the Boston Bar, and before he 17 became a justice and then chief justice of the Supreme Judi¬ cial Court of Massachusetts, and then an associate justice of the Supreme Court of the United States, in which he exhaus¬ tively reviews the subject of writs of assistance, from the legal point of view. Gray reached the conclusion that writs of assistance were legal, and, “though contrary to the spirit of the English con¬ stitution, could hardly be refused by the Provincial court, before general warrants had been condemned in England and* before the revolution had actually begun in America.” Lord Mansfield and Lord Camden delivered their famous judgments pronouncing general warrants for persons or papers illegal in England* in 1763 and 1765, and it was not asking too much of the Superior Court of Massachusetts to do the same thing in Massachusetts in 1761. (Wilkes v. Wood, 19 St. Trials, 1153; Leach v. Money, 19 St. Trials, 1001; Entick v. Carrington, 19 St. Trials, 1030.) H * 19 THE SOVEREIGNTY OF THE PEOPLE. The elective franchise and its representative nature— Quizot s classification of governments—Popular assemblies of the ancient Germans as described by Tacitus—Township gov¬ ernments in the United States—Restrictive statute of British Parliament of 1774 (14 Geo. III. c. 45, sec. 7)—Democracy and representative government inseparable — Immutable nature of the fundamental law—Easy methods of amending constitutions objectionable—Initiative and referendum con¬ demned. Sovereign power is supreme power; it is power that is not subject to any restrictions or limitations what¬ ever. It was exercised by the people of the English colonies in America when the colonies declared their independence and sustained it by force of arms; when each colony as an independent state adopted a constitu¬ tion of its own making, and when they adopted the Con¬ stitution of the United States. Each of the colonies before the Revolution had a Legislative Assembly, a House of Representatives, and these were continued when the war began, and the voice and will of the people found expression in them. In that way the sovereignty of the people was exercised. Legislative assemblies were then and must ever be the most effective and the only way in which the will of the people as a mass can be expressed and made known. 