Constitutions had never been invented. The trial by jury, the leading forms of representative government, the law of evidence, the definition of treason, murder, and other crimes, the distribution of local government between counties and towns, the powers and functions of justices of the peace, and many other particulars that might be enumerated, have been a portion of American law ever since the first settlements were formed at Jamestown and Plymouth. They have not undergone any greater alteration here than in England. The object of the American Revolution was not to subvert, but to defend them. Some of them were specifically re-enacted in the written Constitutions that were framed after the establishment of our independence, as if to mark their importance and the measure of the people's attachment to them. But the re-enactment was a mere form, an act of supererogation; they would have continued in force without it. Thus the Constitution of the United States provides, that "no State shall pass any law impairing the obligation of contracts," and that "private property shall not be taken for public use without just compensation"; and there are similar provisions in most of the State Constitutions. But it has been further decided in our courts, that an act of a Colonial legislature, passed long before these Constitutions were in being, which took away the freehold of one man and vested it in another without compensation, was null and void, " as being against common right and the principles of Magna Charta." Chancellor Kent remarks, that the court "declared the act to be ipso facto void, and that no length of time could give it validity. This was not strictly a question arising upon any special provision of the State Constitution; but the court proceeded upon those great fundamental principles which support all government and property, and which have been supposed by many judges in England to be sufficient to check and control the regulations of an act of Parliament."*

According to the view here taken, there has been a gradual accretion and development of the elements of the English and the American Constitutions. They had a common origin in the usages of the Anglo-Saxons, in the principles of the feudal system as introduced by the Normans, and in the charters which the spirit of the English barons and the

*Kent's Commentaries, I. 451.

English people compelled the Plantagenet kings to grant. They have a common history down to the period of the enactment of the Petition of Right and the settlement of New England. Since that time, their progress has been in different but parallel lines of development. The English Constitution ripened at the Revolution of 1688, in the Declaration and the Bill of Rights, which established the doctrine that the crown is held only by the will of Parliament, and for the sake of the ancient liberties of the people; and there has been no material change in it since that period, as even the Reform Bill of 1832 was not so much a new recognition and guaranty of popular rights as a restoration of the old Constitution, the proper balance of representative power in it having been greatly impaired by the lapse of time and the movement of the population. The American Constitution culminated in the Declaration of Independence and the formation of what is called the Federal Constitution, which consolidated the union of the States. The American Revolution was but one step, though a very important one, in a long series of changes or processes through which this Constitution has been formed. Many of the institutions under which we now live may be traced back to the ancient muniments of English freedom, to the Great Charter, the Confirmation of the Charters, the Statute of Treasons, the Petition of Right, &c.

An important lesson, as it seems to me, is to be derived from this view of the gradual development of our constitution. It is, that constitutions are not made, but they grow by an inherent law of progress and adaptation to changing circumstances. They are not contrivances of human wisdom, but are necessary products of men's habits and wants. English institutions transplanted to an American soil grew up naturally into a republican form of government; while the same institutions, continuing on English ground, were developed just as naturally into the aristocratic limited monarchy which still subsists there, though the infusion of the popular element into it is daily increasing. In France, on the other hand, an attempt has been repeatedly made to sweep away every vestige of the old form of government, and, on the tabula rasa thus formed, to build up a polity entirely new, constructed on theoretical principles, and with due attention to artistic unity and symmetry of plan. But

why

the result of each of these attempts has been a disastrous failure. So it must ever be. Institutions which have no root in the soil, no hold on the previous habits, associations, and affections of the people, will be prostrated by the first blast.

The documents contained in this volume have been brought together to illustrate the rise and progress of the English and the American Constitutions, to show what they are, and how they became what they are. They bear an obvious relation to each other, and mark the successive epochs in the progress of the liberty and the development of the political institutions of the English race. Some knowledge of them appears to be requisite for a proper understanding, not only of the origin and the history, but of the meaning and spirit, of the forms of government which are established in England and this country, and for a proper comparison of these forms with each other. In the notes and introductions, I have endeavored to give, as briefly as possible, the necessary collateral information to make the text intelligible even to young students, leaving all the historical particulars, however, to be learned from the ordinary works upon the history of the two countries.

The Great Charter is the only document in this collection which needs much annotation. Though the original Latin of this famous instrument has been repeatedly edited with great care, and published in fac-simile, I could not find any good English version of it, or any commentary upon it suited for unprofessional students. The copy which is prefixed to the Statutes at Large is a translation of the Great Charter of Henry III., which differs in several important respects from that of John, and is also inferior to its predecessor in historical interest. It does not contain, for instance, the article directing how the Great Council shall be brought together to authorize the assessment of scutages. But it was directly confirmed by Parliament, while the Charter of John was never sanctioned by the formal consent of the three estates of the realm. Henry's Charter is therefore still in force, as a portion of the existing law, and is consequently printed in the general collection of the Statutes; while its great original, of which in truth it is only a maimed and defective copy, has no legal validity, and is an object of interest merely to the historical inquirer and the student of political science. The only annotated ver

sion of King John's Magna Charta which I had seen when this collection was begun, is a very imperfect one in Rapin's History of England; it is awkward and inelegant in expression, and on being compared with the original, it appears both incorrect and defective. I have revised and almost entirely rewritten it, using for this purpose the translation of Henry the Third's Charter as printed in the Statutes at Large, the Latin text as it appears in one of Blackstone's Law Tracts, and that also which is contained in the recent and very correct edition of Rymer's Fœdera, for which we are indebted to the Record Commission.

Neither Professor Creasy's "Text-Book," nor his "Rise and Progress of the English Constitution," was seen by me till the first half of this volume was in print, or I should have adopted his excellent translation of the Charter. But I have been gratified to find that his version agrees in every important respect with my own, and that he has adopted in his commentary the same general views of the character and meaning of the various clauses. The object of the notes here given is only to render the text intelligible, by explaining those technical peculiarities of the Feudal System which it is the glory of the Great Charter to have removed or mitigated.

This volume is not designed for separate use, as a manual of instruction, but as the natural accompaniment of any text-book on the Constitutional History or Constitutional Law of England and America; or it may serve as a kind of syllabus to a course of lectures upon these two subjects. I have found the need of such a collection for both these purposes, and have compiled it merely for my own occasions; but I hope it may also prove serviceable to other instructors.

CAMBRIDGE, April 18, 1854.