Cyclopædia of Political Science, Political Economy, and the Political History of the United States

Edited by: Lalor, John J.
(?-1899)
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First Pub. Date
1881
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New York: Maynard, Merrill, and Co.
Pub. Date
1899
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Includes articles by Frédéric Bastiat, Gustave de Molinari, Henry George, J. B. Say, Francis A. Walker, and more.
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BILL OF RIGHTS

I.133.1

BILL OF RIGHTS. A bill of rights is an abstract of rights and privileges claimed by a people.

I.133.2

—In English constitutional law the bill of rights is known especially as the act of parliament 1 William and Mary, (see. 2, c. ii.), by which certain demands contained in the declaration of rights, were enacted as essentials principles of political liberty.

I.133.3

—The formation and adoption of the English bill o rights constitutes one of the most important epochs in the history of British constitutional law. It is the last of the three great acts upon which the liberty of the English citizen has been founded, and which, with such a unity of principle, so pervades and sustains his personal freedom, that they may be proclaimed to be a trinity of principles, consolidated in a great fundamental truth, forming what lord Chatham called "the Bible of the English constitution."

I.133.4

—The first of these acts which have been so firmly engraven upon English constitutional law, is that of magna charta, which in crude text before the discernment of legal forms had appeared, proclaimed in king John's oath before the barons at Runnymede, in 1215, that "No freeman shall be taken or imprisoned or disseized or outlawed or banished or any ways 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." "We will sell to no man; we will not deny to any man either justice or right." This has become a perpetual law of the realm, and each English sovereign swears, in express form of words, to support it, as a part of the coronation oath.

I.133.5

—The second of these acts was the famous "Petition of Rights," which was an explicit affirmation of the principles of magna charta, applied to existing grievances. The arrest of John Hampden and four other citizens, for refusing to pay certain taxes levied by the king's order, and their subsequent treatment, occasioned the excitement which produced this act, and started the revolution which fills so many memorable pages of English history. They applied to the court of king's bench for the writ of habeas corpus, to know whether their commitment was by the "law of the land," and the charge upon which it was made.

I.133.6

—The writ was granted; but the warden of the fleet made return that they were detained by a warrant from the privy council informing him of no particular cause of imprisonment, but that they were committed by the special command of his majesty, the king.

I.133.7

—This return, made by the warden of the fleet, was followed by fierce denunciation on the part of the people, resulting in the petition of rights. This instrument, among other things, recited that, "whereas by the statute called the 'Great Charter of the Liberties of England,' it is declared and enacted that no freeman may be taken or imprisoned, or be disseized of his freehold or liberties, or his free customs, or be outlawed or exiled, or in any manner destroyed, but by the lawful judgment of his peers, or by the law of the land." "And in the eighth and twentieth year of the reign of king Edward III. it was declared and enacted by authority of parliament, that no man of what estate or condition that he be, should be put out of his lands or tenements, nor taken, nor imprisoned, nor disinherited, nor put to death without being brought to answer by due process of law." "Nevertheless, against the tenor of said statutes and other the good laws and statutes of your realm, to that end provided, divers of your subjects have of late been imprisoned without any cause showed, and when for their deliverance they were brought before your justices by your majesty's writs of habeas corpus, there to undergo and receive as the court should order, and their keepers commanded to certify the causes of their detainer, no cause was certified, but that they were detained by your majesty's special demand, signified by the lords of your privy council, and yet were returned back to their several prisons without being charged with anything to which they might make answer according to law."

I.133.8

—In answer to this petition, to appease the excitement of the people, the king signed new guarantees of liberty. The royal work was, however, again broken, and odious and oppressive acts imposed upon the nation. The struggle between the people and the king began again and raged with great passion until Charles I was beheaded, and the form of government known as the "Protectorate of Oliver Cromwell" came into existence.

I.133.9

—The third great act in British history which was the culmination of the principles of magna charta and the petition of rights, was after the restoration, in the year 1689, and under the reign of James II. This revolutionary period closed with the enactment of the "Bill of Rights," the exile of James II., and the closing forever, among British sovereigns, of the line of kings from the house of Stuarts.

I.133.10

—James II. ascended the British throne with two aims as the summit of his ambition. One was the overthrow of the constitutional system of England; the other, the restoration of the Catholic religion. In these endeavors the king resorted to the use of a vast number of illegal means, chief among which was the creation of a great standing army; the erection of a new court of ecclesiastical commission; the violation of the privileges of the universities; the suspension of the writ of habeas corpus; the nullification of the test act; and the modeling and remodeling of corporations in the hope that a parliament might be packed that would give to the king's illegal acts the color and form of law.

I.133.11

—By these acts of usurpation and oppression, in the attempted overthrow of the English constitutional law, he arrayed against him nearly all of his subjects. And, as it were, to complete that alienation of feeling between the subject and the sovereign, he adopted other odious measures. He made the foreign policy of his country subservient to that of France, so as to gain the favor of Louis XIV to his home policy. And to crown his acts of illegal seizure, he ordered the arrest of the archbishop of Canterbury and six bishops of the church of England, and their imprisonment in the Tower, for petitioning the king against his majesty's order that the "declaration of indulgences should be read in the churches".

I.133.12

—These tyrannous acts so aroused the people that upon the pretended birth of a son to queen Mary to create an heir to the kingdom and thus perpetuate the king's line, the revolution began.

I.133.13

—William, prince of Orange, Protestant, and Mary his wife, who was the daughter of James, were invited by the earls of Shrewsbury, Devonshire and Derby, lord Lumley, Henry Sidney, Edward Russell and Henry Compton, the suspended bishop of London, to invade England and strike for the crown. In response to this invitation from some of England's most powerful leaders, William landed with a military force of 15,000 men. Although meager compared to king James' army, and totally inadequate to the conquest of a kingdom, yet such was the feeling of the English people, and so pronounced their hostility to James, that all classes in great numbers flocked to the standard of the prince of Orange, and James, abandoned by all, including his daughter Anne, fled to France, where he was received and pensioned by the French king Louis XIV. In the following year he attempted to regain his throne by invading Ireland, and in July, 1690, fought the battle of the Boyne, where he was signally defeated by William, and driven forever from British soil.

I.133.14

—At the time (Feb. 13, 1689,) that the crown was tendered to the princess of Orange, an instrument called the "Declaration of Rights," a digest of those fundamental principles of the English constitution, which were to be imposed as a condition of their acceptance of the crown, was delivered. This declaration recited the principal grievances which the nation had suffered under the preceding reign, viz., the assumption as a royal prerogative to grant a dispensation from penal acts of parliament; the establishment of a new tribunal to determine ecclesiastical questions; levying taxes without consent of parliament; maintaining a standing army in time of peace; interfering with the administration of justice, and the freedom of elections; exacting excessive bail from prisoners; inflicting barbarous and unusual punishments; exercising to an unlawful degree the dispensing power; and treating as criminal, petitions for redress of wrongs—all of which acts were declared to be illegal. The instrument then proceeded to assert the right of petition to the subjects of the crown; the right of freedom of debate in parliament; the right of electors to choose their representatives without interference by the emissaries of the king; the right of the people, through their representatives in parliament, to levy taxation in support of the crown; the right of the subject to a speedy and impartial trial under the laws by established courts of justice; the right to have jurors duly empanneled, and that jurors in trials for high treason should be freeholders; the right of impartial proceedings under writs of habeas corpus; the right of the subjects to have arms for their defense; the right that excessive fines should not be imposed, and that all grants and promises of fines and forfeitures before conviction shall be adjudged illegal; and that for redress of all grievances, and for the amendment, strengthening and preserving of the laws, parliaments ought to be held frequently.

I.133.15

—This declaration of rights was presented to the prince and princess of Orange at Whitehall, and by them accepted with the crown. The establishment of the claims of the English citizen to personal and political freedom under constitutional law appeared complete. There were those, however, who had aided in the re-establishment of English liberty who firmly and conscientiously believed that the convention known as "A convention of the Estates of the Realm," which had proclaimed this declaration of rights and conferred the crown on William and May, was an illegal and revolutionary body; that it was not a parliament in a lawful acceptation; that it had not been convoked in accordance with long established usage, not having been summoned by a royal writ, which was held to be indispensable to its legal authority; that the instrument it had drawn up and presented to the prince and princess of Orange was unknown to the ordinary law, not having received the royal sanction, and was not therefore binding in any lawful degree.

I.133.16

—It was urged by others, equally zealous in the interest of constitutional law as a protection of personal rights, that the royal writ was a mere matter of form, and that to expose the substance of laws and liberties to serious hazard for the sake of a form would be senseless superstition. They further held that no royal writ had summoned the convention which recalled Charles II., and that it continued to perform legislative functions after his restoration without a change of legal statutes. Finally, that where the sovereign, the peers, spiritual and temporal, and the representatives freely chosen by the constitutional bodies of the realm, were met together, there was the essence of a parliament. It was finally determined that this great contract between the "governor and the governed," this "title deed," by which the king held his throne and the people their liberties, should be put into a strictly legal and regular form. To effect this, it was resolved that the declaration of rights should be converted by law into a bill of rights. The first act to be performed was that of changing the "Convention of the Estates of the Realm" into a parliament, so that its legislative acts might acquire a legal status. This was speedily accomplished by the king appearing in state at the house of lords, taking his seat on the throne and summoning the commons before him, for the purpose of delivering his speech to the two houses of parliament. On the king retiring, a bill declaring the convention a parliament was rapidly passed by both houses, and, on the tenth day after the accession of William and Mary, received the royal assent.

I.133.17

—The house of commons immediately thereafter passed an act converting the provisions of the declaration of rights into a bill of rights. It did not, however, become a law at this session.

I.133.18

—The declaration, among other things, had settled the crown first on William and Mary jointly, then on the survivor of the two, then on Mary's posterity; then on Anne and her posterity; and lastly, on the prosperity of William by any other wife than Mary. The bill was drawn in exact conformity with the declaration.

I.133.19

—At the suggestion of the king, when the bill of rights came before the house of lords for passage, an amendment was adopted, defining that the crown should, failing heirs of his majesty's body, be entailed on an undoubted Protestant, Sophia, duchess of Brunswick, Luxemburg, granddaughter of James I., and daughter of Elizabeth, queen of Bohemia. On the return of the bill to the house of commons for concurrence in this amendment, for some cause not clearly discernible, that body, by a unanimous vote, refused to concur. As the house of lords likewise refused to recede from its amendment, the bill of rights was dropped for that session. On the re-assembling of parliament at the following session, the house of lords no longer insisting upon the amendment entailing the throne upon Sophia, the granddaughter of James I., or any other person designated by name as successor, the bill became a law, and the declaration of rights, that changed the dynasty, seated William and Mary on the throne and secured to the English citizen personal and political liberty, became engrafted upon English constitutional law as the "Bill of Rights."

I.133.20

—The bill of rights, in addition to reiterating the privileges contained in the provisions of the declaration of rights, embraced some others of greater stringency. It stipulated that every English sovereign should, in full parliament and at the coronation, repeat and subscribe to the declaration against transubstantiation. It also enacted that no person who should marry a Papist should be capable of reigning in England, and that if the sovereign should marry a Paptist, the subject should be absolved from allegiance.

I.133.21

—The declaration of rights had contained no other provision with regard to the dispensing power of the king than to pronounce that power, as of late exercised, as illegal. All authorities and precedents sanctioned the theory that to the crown there belonged a certain dispensing power. How far that power might be exercised for the good of the realm, to what extent it might be judiciously exerted for the benefit of the subject, and to what limits it should be imperatively confined to prevent encroachment upon the constitutional law of the land, were questions that occasioned a wide divergence of opinion. Consequently every attempt to frame a definite policy failed from want of unison, and it was finally determined, as the only concurrent sentiment that could be obtained, to abolish it entirely. And thus, by the bill of rights, this peculiar privilege which for centuries had been held a prerogative of English kings, and which had been the cause of many fierce contentions, was forever swept away. The constitutional rights contained in this bill, with some additions, were re-asserted in the act of settlement by which the crown was limited to the Hanover family. (12 and 13 William III., c. ii.)

I.133.22

—Similar provisions to those contained in the English bill of rights were appended to the constitution of the United States as amendments. Article I. provides, that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and to petition the government for a redress of grievances." Article II. provides, that "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." Article III. provides, that "No soldier shall, in time of peace, be quartered in any house without the consent of the owner; nor in time of war, but in a manner to be prescribed by law." Article IV. provides, that "The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be invaded, and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized." Article V. provides, that "No person shall be held to answer a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall he be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property without due process of law; nor shall private property be taken for public use without just compensation." Article VI. provides, that "In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district were the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense."

I.133.23

—It has been held by American statesmen that the foregoing amendments to the constitution of the United States are a concentration of all the tenets of liberty contained in magna charta, its continuation in the petition of rights, and its extension in the English bill of rights. And in verification, as it were, of the tribute paid by the earl of Chatham, that "the great acknowledgement of national rights contained therein is not confined to themselves alone, but confers a common blessing upon mankind," their adoption in the American constitution is a broad exemplification. Other nations have taken them for a guide in promulgating their principles of personal liberty, notably the declaration of rights adopted during the reign of Louis XVI., by the French national assembly. It differs somewhat from the English bill of rights in form of expression, its opening sentence resembling that of the American declaration of independence. It declared that all mankind are originally equal; that the ends of the social union are liberty, property, security and resistance to oppression; that sovereignty resides in the nation, and that all power emanates from it; that freedom consists in doing everything that does not injure another; that law is the expression of the general will; that public burdens should be borne by all the members of the state in proportion to their fortune; that the elective franchise should be extended to all; and that the exercise of natural rights has no other limits than their interference with the rights of others. This declaration of rights by the French assembly became a law by the sanction of the king.

I.133.24

—A similar recital of rights as contained in the amendments to the constitutions of the United States, usually including the writ of habeas corpus, is found in the laws or constitution of a number of the states of the American Union.*34

JNO. W. CLAMPITT.


Notes for this chapter


34.
In the constitution of a state of the American Union, says Judge Cooley, in his "Constitutional Limitations," we shall expect a declaration of rights for the protection of individuals and minorities. This declaration usually contains the following classes of provisions: "1. Those declaratory of the general principles of republican government; such as, that all freedmen, when they form a social compact, are equal, and no man, or set of men, is entitled to exclusive, separate public emoluments or privileges from the community, but in consideration of public services; that absolute, arbitrary power over the lives, liberty and property of freemen exists now here is a republic, not even in the largest majority; that all power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety, happiness, security, and the protection of property; that for the advancement of these ends they have at all times in inalienable and indefeasible right to alter, reform, or abolish their government in such manner as they may think proper; that all elections shall be free and equal; that no power of suspending the laws shall be exercised except by the legislature or its authority; that standing armies are not to be maintained in time of peace; that representation shall be in proportion to population; that the people shall have the right freely to assemble to consult of the common good, to instruct their representatives, and petition for redress of grievances; and the like 2. Those declaratory of the fundamental rights of the citizen: as that all men are by nature free and independent and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining safety and happiness; that the right to property is before and higher than any constitutional sanction; that the free exercise and enjoyment of religious profession and worship, without discrimination of preference, shall forever be allowed; that every man may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right; that every man may bear arms for the defense of himself and of the state; that the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, shall not be violated, nor shall soldiers be quartered upon citizens in time of peace; and the like. 3. Those declaratory of the principles which ensure to the citizen an impartial trial, and protect him in his life, liberty and property against the arbitrary action of those in authority: as that no bill of attainder or ex post facto law shall be passed; that the right to trial by jury shall be preserved; that excessive bail shall not be required, nor excessive punishments inflicted; that no person shall be subject to be twice put in jeopardy for the same offense, nor be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property without due process of law; that private property shall not be taken for public use without compensation; and the like."

—Our author, writing of bills of attainder, says: "Bills of attainder were prohibited to be passed, either by the congress or by the legislatures of the several states. Attainder, in a strict sense, means an extinction of civil and political rights and capacities; and at the common law it followed, as of course, on conviction and sentence to death for treason; and, in greater or less degree, on conviction and sentence for the different classes of felony.

—A bill of attainder was a legislative conviction for alleged crime, with judgment of death. Such convictions have not been uncommon under other governments, and the power to pass these bills has been exercised by the parliament of England at some periods in its history, under the most oppressive and unjustifiable circumstances, greatly aggravated by an arbitrary course of procedure, which had few of the incidents of a judicial investigation into alleged crime. For some time before the American revolution, however, no one had attempted to defend it as a legitimate exercise of power; and if it would be unjustifiable anywhere, there were many reasons why it would be specially obnoxious under a free government, and why consequently its prohibition, under the existing circumstances of our country, would be a matter of more than ordinary importance. Every one must concede that a legislative body, from its numbers and organization, and from the very intimate dependence of its members upon the people, which renders them liable to be peculiarly susceptible to popular clamor, is not properly constituted to try with coolness, caution and impartiality a criminal charge, especially those cases in which the popular feeling is strongly excited,—the very class of cases most likely to be prosecuted by this mode. And although it would be conceded that, if such bills were allowable, they should properly be presented only for offenses against the general laws of the land, and be proceeded with on the same full opportunity for investigation and defense which is afforded in the courts of the common law, yet it was remembered that in practice they were often resorted to because an obnoxious person was not subject to punishment under the general law, or because, in proceeding against him by this mode, some rule of the common law requiring a particular species or degree of evidence might be evaded, and a conviction secured on proofs that a jury would not be suffered to accept as overcoming the legal presumption of innocence. Whether the accused should necessarily be served with process; what degree or species of evidence should be required; whether the rules of law should be followed, either in determining what constituted a crime, or in dealing with the accused after conviction,—were all questions which would necessarily address themselves to the legislative discretion and sense of justice; and the very qualities which are essential in a court to protect individuals on that before them against popular clamor, or the hate of those in power, were precisely those which were likely to prove weak or wanting in the legislative body at such a time. And what could be more obnoxious in a free government that the exercise of such a power by a popular body, controlled by a mere majority, fresh from the contests of exciting elections, and quite too apt, under the most favorable circumstances, to suspect the motives of their adversaries, and to resort to measures of doubtful propriety to secure party ends?

—Nor were legislative punishments of this severe character the only ones known to parliamentary history; there were others of a milder form, which were only less obnoxious in that the consequences were less terrible. Those legislative convictions which imposed punishments less than that of death were called bills of pains and penalties, as distinguished from bills of attainder; but the constitutional provisions we have referred to were undoubtedly aimed at any and every species of legislative punishment for criminal or supposed criminal offenses; and the term 'bill of attainder' is used in a generic sense, which would include bills of pains and penalties also.

—The thoughtful reader will not fail to discover, in the acts of the American states during the revolutionary period, sufficient reason for this constitutional provision, even if the still more monitory history of the English attainders had not been so freshly remembered. Some of these acts provided for the forfeiture of the estates, within the commonwealth, of those British subjects who had withdrawn from the jurisdiction because not satisfied that grievances existed sufficiently serious to justify the last resort of an oppressed people, or because of other reasons not satisfactory to the existing authorities; and the only investigation provided for was an inquiry into the desertion. Others mentioned particular persons by name, adjudged them guilty of adhering to the enemies of the state, and proceeded to inflict punishment upon them, so far as the presence of property within the commonwealth would enable the government to do so. These were the resorts of a time of extreme peril; and if possible to justify them in a period of revolution, when everything was staked on success, and when the public safety would not permit too much weight to scruples concerning the private rights of those who were not aiding the popular cause, the power to repeat such acts under any conceivable circumstances in which the country could be placed again was felt to be too dangerous to be left in the legislative hands. So far as proceedings had been completed under those acts, before the treaty of 1783, by the actual transfer of property, they remained valid and effectual afterward; but so far as they were then incomplete, they were put an end to by that treaty.

—The conviction of the propriety of this constitutional provision has been so universal, that it has never been questioned, either in legislative bodies or elsewhere. Nevertheless, cases have recently arisen, growing out of the attempt to break up and destroy the government of the United States, in which the supreme court of the United States has adjudged certain action of congress to be in violation of this provision and consequently void. The action referred to was designed to exclude from practice in the United States courts all persons who had taken up arms against the government during the recent rebellion, or who had voluntarily given aid and encouragement to its enemies; and the mode adopted to effect the exclusion was to require of all persons, before they should be admitted to the bar or allowed to practice, an oath negativing any such disloyal action. This decision was not at first universally accepted as sound; and the supreme courts of West Virginia and of the District of Columbia declined to follow it, insisting that permission to practice in the courts is not a right, but a privilege, and that the withholding it for any reason of state policy or personal unfitness could not be regarded as the infliction of criminal punishment.

—The supreme court of the United States have also, upon the same reasoning, held a clause in the constitution of Missouri, which, among other things, excluded all priests and clergymen from practicing or teaching unless they should first take a similar oath of loyalty, to be void, overruling in so doing a decision of the supreme court of that state."

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