searches on this point, for the best evidence that can be produced of the deep and universal sense of the value of our natural rights, and of the energy of the principles of the com

mon law, are the memorials of the spirit which pervaded *5 and animated every part of our country, after the peace

of 1763, when the same parent power which had nourished and protected us, attempted to abridge our immunities, and retard the progress of our rising greatness.

The House of Representatives in Massachusetts, the House of Assembly in New York, and the House of Burgesses in Virginia, took an early and distinguished part, upon the first promulgation of English measures of taxation, in the assertion of their rights as freeborn English subjects. (a) The claim to common

declaratory acts of the general assembly of East New Jersey in 1682 and 1698; and of the concessions and agreements of the proprietaries and planters of West New Jersey, and called the great charter of fundamentals, in 1676; and of the declaratory act of the general assembly of West Jersey, in 1681. (Leaming's and Spicer's Collections, edit. Philad. folio, 1757, pp. 11-26, 153–166, 235, 240, 370, 372, 382, 411. Smith's Hist. of New Jersey, 126, 270-4, App. No. 1, 2.) The West New Jersey colonists in 1676, introduced voting by ballot, universal suffrage, the right and obligation of instructions, universal eligibility to office, and abolished imprisonment for debt. All this was done under the auspices of William Penn, whose influence contributed to plant West New Jersey, and who was a joint assignee and trustee of an undivided portion of West Jersey, as well as a joint owner by purchase with other partners of East Jersey. The declaration of the general assembly of Virginia, in 1624. that the governor should not lay, levy, or employ any taxes or impositions upon the colony, except by authority of the general assembly, was the first example of the assertion of such a right; as that house was the first popular representative body ever convened in America. Hening's Statutes, vol. i. pp. 118, 122. Story's Com. on the Const. vol. i. p. 26. The charter of the colony of Maryland, in 1632, was peculiarly liberal. It established an independent colonial legislation in the proprietary and the freemen or their deputies, and the crown stipulated never to levy any tax upon the inhabitants, and the inhabitants were to enjoy all the rights and privileges of English subjects. 1 Chalmers's Annals, pp. 202-205. 1 Hazard's Coll. p. 327. The first assembly of Maryland, in 1638, declared the great charter of England to be the measure of their liberties; and William Penn, in the preface to the plan of government prepared for Pennsylvania, in 1682, declared that any government is free to the people under it, where the laws rule, and the people are a party to those laws. Proud's Hist. of Pennsylvania, vol. ii. App. p. 7. Bacon's Laws, 1638, ch. 2.

(a) Minot's Hist. of Massachusetts, vol. ii. p. 175. Journals of Assembly of New York, vol. ii. pp. 769-780. Jefferson's Notes on Virginia, 189. Marshall's Life of Washington, vol. ii. p. 88, and Appendix, note No. 4. Wirt's Life of Patrick Henry, sec. 2. The assertion by the English House of Commons, in 1764, and prior to the Stamp Act, of a right to impose taxes upon the colonies, produced spirited and manly remonstrances to the King and Parliament from several of the colonial assemblies. Pitkin's Hist. of the United States, vol. i. pp. 165–169. The general assembly of the

law rights soon became a topic of universal concern and national vindication. In October, 1765, a convention of delegates from nine colonies assembled at New York, and made and published a declaration of rights, in which they insisted that the people of the colonies were entitled to all the inherent rights and liberties of English subjects, of which the most essential were, the exclusive power to tax themselves, and the privilege of trial by jury. (a) The sense of America was, however, more fully ascertained, and more explicitly and solemnly promulgated, in the memorable declaration of rights of the first Continental Congress, in October, 1774, and which was a representation of all the colonies except Georgia. That declaration contained the assertion of several great and fundamental principles of American liberty, and it constituted *6 the basis of those subsequent bills of rights, which, under various modifications, pervaded all our constitutional charters. It was declared, "that the inhabitants of the English colonies in North America, by the immutable laws of nature, the principles of the English constitution, and their several charters or compacts, were entitled to life, liberty, and property; and that they had never ceded to any sovereign power whatever, a right to dispose of either, without their consent; that their ancestors who first settled the colonies, were, at the time of their emigration from the mother country, entitled to all the rights, liberties, and immunities of free and naturalborn subjects; and by such emigration they by no means forfeited, surrendered, or lost any of those rights; — that the foundation of English liberty, and of all free government, was the right of the people to participate in the legislative

colony of New York, in October, 1764, not only asserted their exclusive right of taxing their constituents, but complained, at the same time, of the grievance of putting an end, by Act of Parliament, to commercial intercourse between the colonies and foreign West India settlements. Journals of N. Y., Ibid. The Stamp Act was passed the 22d March, 1765, and this was the first measure of indirect taxation laid upon the colonies by the British Parliament for the mere purpose of revenue. The first resolutions of any of the colonial assemblies, after the passage of the Stamp Act, came from the house of burgesses of Virginia. They were introduced by Patrick Henry, in May 1765, and asserted the right in the colonists of taxing themselves. Wirt's Life of Patrick Henry, sec. 2.

(a) Marshall's Life of Washington, vol. ii. p. 90, and Appendix, note No. 5.

power, and they were entitled to a free and exclusive power of legislation, in all matters of taxation and internal policy, in their several provincial legislatures, where their right of representation could alone be preserved; that the respective colonies were entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage, according to the course of that law; that they were entitled to the benefit of such of the English statutes as existed at the time of their colonization, and which they had by experience found to be applicable to their several local and other circumstances; that they were likewise entitled to all the immunities and privileges granted and confirmed to them by royal charters, or secured by their several codes of provincial laws." (a) Upon the *7 formation of the several state constitutions, after the

colonies had become independent states, it was in most instances thought proper to collect, digest, and declare, in a precise and definite manner, and in the shape of abstract propositions and elementary maxims, the most essential articles appertaining to civil liberty and the natural rights of mankind. (b)

(a) Journals of Congress, vol. i. p. 28, ed. Phil. 1800. It was a principle of the English common law, that Acts of Parliament did not bind the English colonies unless they were specially named. Blankard v. Galdy, 4 Mod. 222. 2 Salk. 411, S. C. Sir Joseph Jekyll, in 2 P. Wms. 75. But the prevalent doctrine in the colonies, and one that was acted upon by some of the legislatures, was, that no Act of Parliament was binding upon the colonies, though named, unless ratified by the colonial legislatures, and on the ground that they were not represented in Parliament. Hutchinson's History, vol. i. p. 322. Chalmers's Annals, 277, 400. Pitkin's Hist. of the United States, vol. i. pp. 91, 92, 96, 97. The original charter of Pennsylvania to William Penn, contained a provision that no contribution should be levied on the inhabitants or their estates, unless by the consent of the proprietary or governor and assembly, or by Act of Parliament in England. Charter, sec. 2, Proud's Hist. of Pennsylvania, vol. i. p. 185. Yet this anomalous reservation of a power of taxation in Parliament was always understood by the colonists to imply, that the people of the province were to be allowed to send their representatives to Parliament previous to the exercise of the power. This was so asserted by Dr. Franklin, in his examination before the House of Commons in England, prior to the American war.

(b) Cicero, in his treatise De Republica, lib. 1, sec. 32, insisted that equality of rights was the basis of a commonwealth; for since property could not be equal, and talents were not equal, rights ought to be held equal among all the citizens of the tate, which was, in itself, nothing but a community of rights.

The precedent for these declaratory bills of rights was to be found, not only in the colonial annals to which I have alluded, but in the practice of the English nation, who had frequently been obliged to recover their indefeasible rights by intrepid councils, or by force of arms, and then to proclaim them by the most solemn and positive enactments, as a barrier against the tyranny of the executive power. The establishment of Magna Charta, and its generous provision for all classes of freemen against the complicated oppressions of the feudal system; the petition of right, early in the reign of Charles I., asserting by statute the rights of the nation as contained in their ancient laws, and especially in "the great charter of the liberties *8 of England;" and the bill of rights at the revolution, in 1688, (a) are illustrious examples of the intelligence and spirit of the English nation, and they form distinguished eras in their constitutional history. (b) But the necessity, in our representative republics, of these declaratory codes, has been frequently questioned, inasmuch as the government, in all its parts, is the creature of the people, and every department of it is filled by their agents, duly chosen or appointed, according to their will, and made responsible fo inal-administration. It may be observed, on the one hand, that no gross violation of those absolute private rights, which are clearly understood and settled by the common reason of mankind, is to be apprehended in the ordinary course of public affairs; and as to extraordinary in

(a) Act of 1 W. & M., sess. 2, ch. 2, entitled, “ An Act declaring the rights and liberties of the subject, and settling the succession of the crown." See, also, the Act of Settlement, 12 & 13 Wm. III. ch. 2, and ante, 293.

(b) This free spirit of the English nation at the era of Magna Charta, was not peculiar to the Anglo-Saxon race in that island. We have an analogous and almost contemporary case in Denmark, upon the election of King Christopher II., in 1319. He was called upon by the diet or assembly of great men which elected him, to sign a capitulation or charter, taken from preceding models, in which it was declared, not only that the feudal nobility and the clergy should be secure in their privileges and exemptions, but that the free peasants should not be subject to any tax contrary to the established laws and customs; that a parliament should be annually held at Wyborg; that no man should be imprisoned, or deprived of life and property, without public trial and conviction according to law; and that no law should be made or altered without consent of Parliament, consisting of the prelates and best men of the kingdom. Bishop Muller, on the Ancient History and Constitution of Denmark, noted in the Foreign Quarterly Review, No. 21.

stances of faction and turbulence, and the corruption and violence which they necessarily engender, no parchment checks can be relied on as affording, under such circumstances, any effectual protection to public liberty. When the spirit of liberty has fled, and truth and justice are disregarded, private rights can easily be sacrificed under the forms of law. On the other hand, there is weight due to the consideration, that a bill of rights is of real efficacy in controlling the excesses of party spirit. It serves to guide and enlighten public opinion, and to render it more quick to detect, and more resolute to resist, attempts to disturb private right. It requires more than ordinary hardiness and audacity of character to trample down principles which our ancestors cultivated with reverence; which we imbibed in our early education; which recommend themselves to the judgment of the world by their truth and simplicity; and which are constantly placed before the eyes of the people, accompanied with the imposing force and solemnity of a constitutional sanction. Bills of rights are part of the muniments of freemen, showing their title to protection, and they become of increased value when placed under the protection of an independent judiciary, instituted as the appropriate guardian of private right. Care,

however, is to be taken in the digest of these declaratory * 9 provisions, to * confine the manual to a few plain and un

exceptionable principles. We weaken greatly the force of them if we incumber the constitution, and perhaps embarrass the future operations and more enlarged experience of the legis lature, with a catalogue of ethical and political aphorisms, which, in some instances, may reasonably be questioned, and in others justly condemned. (a) In the revision of the constitu

(a) The following instances may be mentioned as illustrations of the questionable nature of some of these declaratory provisions :

Thus, several of the state constitutions, as those of New Hampshire, Massachusetts, Vermont, North Carolina, Ohio, Indiana, and Illinois, have made it an article in their bill of rights, that the people have a right not only to apply to the legislature by petition or remonstrance, but to "instruct their representatives." If, by this, be meant that they may give to their representatives wholesome advice or information, it is a palpable truth, and quite a harmless article; but if it be intended to declare that the people of a town, or county, or district, may give binding instructions to their immediate delegates, and to which they must conform without any exercise of their own discretion in like manner as an agent or attorney in private business is bound by the