Page:The Green Bag (1889–1914), Volume 16.pdf/64

 The Judicial History of Individual Liberty.

THE JUDICIAL HISTORY OF INDIVIDUAL LIBERTY. I. BY VAN VECHTEN VEEDER, Of the New York Bar. THE bill of rights comprised in the first ten amendments to the Constitution of the United States is a tribute to the conserva tive instincts of a people who had watched the development of freedom as is slowly broadened out from precedent to precedent. In the constitution and distribution of gov ernmental powers the founders followed, toa large extent, ideas which had been proved by experience. In their method of protecting individual liberty, however, they adopted a new and untried experiment. More than a century and a half earlier Lord Coke had sought to adjust the balance between King and Parliament by interposing the Judiciary as an arbiter. This plan was rejected; and after the ensuing civil war and revolution Parliament emerged in full possession of the unlimited power which had for centuries been claimed by the crown. Chatham de livered the highest possible eulogy upon the British constitution when he said: "The poorest man may, in his cottage, bid de fiance to all the force of the crown; it may be frail, its roof may shake, the wind may blow through it; the storm may enter, the rain may enter, but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tenement." He could not go further and say that the Par liament might not enter; and to this day Parliament remains supreme. It remained for the founders of our institutions to protect the fundamental personal rights of the citizen, not only from abuse by governmental power, but against the passions of the people themselves. The framers of the Fed eral Constitution had for a long time been absorbed in considering the arbitrary encroachmcnts of Crown and Parliament upon

the liberty of the subject,1 and were in substantial agreement, upon the individual immunities necessary to the enjoyment of the inalienable rights of life, liberty, and the pursuit of happiness—freedom of the person, equality before the law, security of private property, freedom of opinion and its expression, and freedom of conscience. When, therefore, they had drawn up the Fed eral Constitution, although all interference within this sacred domain had already been prohibited to the States, and notwithstanding that specific provisions had in many in stances been inserted in the body of the in strument, the people looked upon this fea ture of their work as a matter of such vital import that they demanded, as an additional precaution, that the limitations upon Federal power should be express, for fear that they might not be implied. The provisions of this ' bill of rights are brief and colorless—a mere skeleton of personal rights. But back of every one of the rights thus enumerated lies ! a long, eventful and absorbing story of struggle with arbitrary power. It may, therefore, be of interest to review this story in so far as it Is recorded in the State trials of England. 1 1 See Ex parte Bain, 121 U. S. 12, per Miller J. [ ¡ j ]

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2 The great collection of the English State Trials, commonly associated with the name of Howell. begins with the trial of Thomas liecket, in 1163. But the first volume, which extends to the seventeenth century, is mostly made up of brief extracts from old chronicles. It'is not until after the middle of the sixteenth century that we begin to get anything like an accurate report. The reign of lames I. is covered by volume 2; of Charles I., by volume three and part of four: the Common wealth, by part of four and live: while the twenty-eight years from the Restoration to the Revolution require seven volumes. Kiom about 1680 we have full and accurate reports of the actual proceedings. Including the new series, from 1820 to 1858, the State Trials com prise forty-two volumes, and contain the record of over nine hundred trials.