the people, called in the books generalem populi conventum, and when changed to representative bodies, were first called synods, then councils, and last, parliaments. Charlemagne and Alfred had not forgotten-what we have so sadly lost sight of in our two legislative chambers, the senate and the house-that there must be more than a distinction as to age or the electing constituency to make a safe, conjunctive, two-bodied, legislative power. They knew that it needed one body to represent the wisdom of the state (wittena-gemote), and another where all interests had their voice (folkgemote). We have the words "assembled wisdom," "public interests," but the embodiment thereof in legislation is no longer among us. Similarly it has gone with the old idea that emperors and kings hold authority. by the "toto coetu populi confirmatæ et sancita." Our presidents and governors are so, nominally, still; but, in fact, they are but the pseudo-leaders of parties. Charlemagne's courts are the models of ours, even down to the associate justices, then called Scabini. The judicium parium, the basis of our juries, existed before Magna Charta; and here also we have deteriorated, for who does not know that our professional jurymen are a farce on anything like judgment by our peers? Whose peers are they? Certainly not often of the parties tried in civil suits. The lord-lieutenants, the chancellors, the councillors, not to forget the constables, are all of Franco-German and Roman origin. So are our counties, as well as our embryo states-our territories-derived from the same source. They called them. "marks." And what we have in the city of Washington and the district of Columbia is nothing but the twisted idea of old Rome as a free metropolis-free from outside power—and, indeed, of the erection of the states of the church as a special government. We have reversed the thing. Instead of a city ruling a whole country, we have cities ruled by a whole country; but now, as then, the country pays the expense.

The phrase, "law of the land," the old lex terræ, which stands so queerly and unexplained in our federal constitution, is at least a thousand years old; it was and is the instinctive protest of the respective jurists of the countries of Europe against foreign religions and laws which were imposed either by invaders or their own kings without having been tested on their society, and which therefore unsettled more morality and law than they established. It seems to us plain, that the words got into our federal constitution more from habit than as a juridical expression. It is similar with the word "sovereignty" in our political discussions; it is a Norman interpolation into English law, which was learned by them during their residence

in Normandy. It really means a public power that need give no reason for its government, and is contained in the ancient conqueror's words, Sic volo, sic jubeo. It is an idea foreign to the Germanic races, it was never thoroughly English, and even in France it is used more from political tendentiousness than with logical precision. It is the Eris-apple of our politics, and the sooner we abandon it the better for us all.

The use of the word sovereignty in our political phraseology brings forcibly to our minds that inconsistency in our public conduct which is so difficult to explain-to wit, the zest with which we assert on one occasion pleonasms of political power for our governments, and the scantiness of authority we would measure out to them at other times. While under the latter influence, we claim inalienable rights for individuals; while under the former, we attribute sovereign powers to states. seems to us that recalling to ourselves the original character of the European tribes, from which we sprung, lets us find the solution of this paradox. They were warriors and partisans, and as tenacious and vigilant as to their own rights and interests as they were oblivious of those of their enemies. The Franks, or by whatever other temporary name these Germanic peoples called themselves, went as well armed to their folkgemotes (meetings) as they did to war. In the first they defended their liberty, in the second they struck down that of others; in both the employment of all the strength they had was their policy. This characteristic they have transmitted from generation to generation, and it beats beneath our waistcoats now as strong as ever. Our presidents, our senators, our clergy, and our politicians all have it; and “We, the people," deposit it in the ballot-box. All our statesmen, not excepting Jefferson or Calhoun, were (unconsciously) political pleonasts, when in pursuit of an object, and all would stint the government which opposed their measures and hindered their personal success. Its source is that second nature of ours-love of power -acquired by our ancestors when roving over Europe for its subjugation and for new settlements.

How much we still follow precedents is plainly visible in the amendments effected by Charles Sumner to the United States Constitution, and particularly in clause 4 to section I of Article XIV., viz.: No state shall "deny to any person within its jurisdiction the equal protection of the laws;" followed up in section 5 by the provision, "that Congress shall have power to enforce by appropriate legislation the provisions of this article." The policy of these provisions is the same as that of John Lackland, who, when compelled to sign Magna Charta,—which was,

as it was presented to him, but a perpetual guarantee of the privileges of the upper, so-called free classes of society,required the addition of a proviso, that whatever rights were conceded to them, they should also concede to their tenants and feudatories. The effect was, that from that proviso have sprung all the gradual liberations of British society, because as the upper classes won powers and immunities from the Crown, they achieved at the same time greater liberties for their subjects. Similar was the object of Sumner. He said simply to the southern people: We will reconstruct your states, and you shall have autonomy therein, provided whatever rights you whites enjoy, by law, shall also inure to your former slaves. It remains to be seen whether there is here the same mettle as there has been in England. If so, it is the most far-reaching provision of our constitution.

British law-writers represent to us all the several stages of constitutional developments in England as revivals of ancient Anglo-Saxon liberties and birthrights; but it seems to us that a much truer way to look at them is to regard them as so many recoveries by English society from being the will-less subjects of their several invaders and their sovereign wills; or, if the reader pleases, it was each time a renewed assertion of the necessity inherent in all human socialities to evolve laws and morals by their own self-action, interaction and reaction, and the co-operation of all embraced in the respective body politic. No one would look upon present British politics with more astonishment than would the ancient Britons, Saxons, Danes, or Normans. They would find many liberties they never heard of, and would, like Blackhawk did in Philadelphia in 1832, see much more tyranny in modern civilization than freedom. Our conception of governing by a box full of tickets, they would certainly regard as utter folly and feebleness. They would perhaps recognize themselves in our zeal on the one hand to grant to government all the power we would like to have exercised for our interest, and on the other, to deny any and all authority for doing anything we do not want to have done.

British liberty, as it is generally styled, British self-development, as we would call it, has grown out of abrogations and denials, and not out of assertions of and submissions to this or that sovereignty; though it is also true that many internal tyrannies were abolished by the very invaders whose sovereign wills had afterwards to be restrained. Two moods alternate in the British as in the American mind, in consequence of these historic processes; to wit: they are either apprehensive of some imposition from abroad, or rejoicing that they have overcome it

by assimilating the old with the new. The results achieved under these impressions they call, as well they may, their own work. We have the habits of these moods, but no longer their cause, for we need fear no invasions. During our revolution, and for a generation afterwards, we had the first mood as an anti-British feeling, and afterwards we had the second as a gratification at the institutions we improvised and fondly called American. But, as stated, the habits outlived the cause; and having no external designs to apprehend, we magnified internal ones into political hobbies-accused each other of meditating this or that tyranny, antagonized each other at elections, and after them felicitated ourselves and the country that it had escaped the perils of these creatures of our imagination. Slavery was such a bugbear between 1854-70; the Catholic Church in 1854-56.

But we kept up among us not only many of the ancestral habits of thought and their moods, but also their words and cant phrases. Because in English society more and more classes claimed and obtained representation in Parliament, and thereby secured more recognition of their interests, we have made a universal rule of it that all public grievances are to be solved by extending to the aggrieved the right of representation. And in this our extension of this so-called right, we have given it to more than to everybody; we have such is the irony of fateactually sunk out of sight the original idea of representation for interests. And yet so great is the necessity thereof, that our politics are after all run by interests, and we have had to recognize their right to be heard through so-called Third Branches of the Legislatures-the lobbies. So too have we kept clamoring for "the right of petition," when the grievances that led to "The Petition of Rights in 1627" never have existed among us. The petitions sent to Congress between 1834-44 were partisan tools used for mere agitations. It was and is much the same with the writ of Habeas Corpus. When originated in 1679, it was done to prevent arbitrary executive arrests of politically obnoxious persons; we use it chiefly in criminal practice, and in cases for which jurisprudence knows remedies equally safe and expeditious for the person under arrest, and much safer for public justice. But what is queerer still-when in 1861-66 there was a necessity for using the writ for its original purpose (arbitrary executive arrests), it was suspended, and neither the courts, nor the legal profession, nor the people, took effective steps to restore it. We were as callous to real justice as we were punctilious about technicalities.

The public wish to have a "Bill of Rights" attached to con

stitutions, owes its origin to a document, going under that name, which had been exacted of William III. in 1689. The rights therein declared had served the fathers of the republic in their agitation for American Independence. It would have been better to have used the original name of the paper, "Declaration of Rights," for how does the word "Bill," which means a proposed law, fit into a constitution? Article XLIV. of the Constitution of North Carolina especially provides: "The Declaration of Rights is hereby declared to be a part of the constitution of this state, and ought never to be violated on any pretence whatever." In the Constitution of Ohio the phrase "Bill of Rights" is used as the superscription to Article I., containing a declaration of rights in twenty sections, the last of which contains these words: "The enumeration of rights shall not be construed to impair or deny others retained by the people; and all powers not herein delegated remain with the people." There is in this section an evident confusion between rights and power, as well as a misunderstanding of the object of a Bill or Declaration of Rights. That exacted of William III. was an act defining the rights of the people, as against the new dynasty which superseded James II., and it could only, when rewritten on the republican basis, be proper for a democratic constitution. We meet with such ill-suited bodily transfers often in American state papers.

"a

We have, with the same want of discrimination, adopted the aversions of the British mind to standing armies, and are therefore enthusiastic admirers of militia systems. Washington's distrust of raw troops could not shake this popular prejudice, and Jefferson confirmed it by putting into his first inaugural address the French deputy's ideas, uttered in 1791, about " nation in arms," and "every man flying to the standard of the law," and "treating invasions of the public order as his own personal concern," and arming himself. These idealities have kept both England and America, especially the latter, from real national armed forces. When Mr. Van Buren proposed in 1839 a wise military law, in strict accordance with the constitution, the very thing for a free people, it was denounced on the stumps and in the press and in Congress, as an attempt to create "a standing presidential army," and an insidious effort against the liberties of the people.

A similar British memory has deprived America of all regular judicial tribunals for the correction of malfeasance and negligence in the public service. Because the Courts Leet, or rather the Privy Council, degenerated in England into Star Chamber judicial proceedings, therefore we in America refuse to establish