Fourteenth to the ognized, that the order of citizenship had been reversed; that Under the under the fourteenth amendment the primary citizenship in Amendthis country is to the United States; and the secondary, to ment pri mary citithe state of the citizen's residence.1 It was further held that zenship due the two citizenships were separate and distinct from each United States, -a other. In the words of the court, "It is quite clear, then, principle that there is a citizenship of the United States and a citizenship of the state, which are distinct from each other, and which depend upon different characteristics or circumstances in the individual." 2 Only the privileges and immunities which belong to a citizen of the United States as such are placed by the fourteenth amendment under the protection of the federal constitution; "those belonging to the citizen of the state as such, . . . must rest for their security and protection where they have heretofore rested; for they are not embraced by this paragraph of the amendment." 3 Thus through the conservative and sagacious judgment of which com the great federal court, over whose high threshold the waves fogical symof passion have seldom broken, the logical symmetry of the metry of constitution was completed by the recognition of a primary tution. and independent federal citizenship whose privileges and immunities were wisely limited to those only "which owe their existence to the federal government, its national character, its constitution, or its laws."4 While the legitimate results of the civil war were thus firmly upheld, the constitution was at the same time carefully guarded against the centralizing tendencies to which it had imparted a fresh and menacing force. pletes the the consti 9. The attempt has now been made to put in a clear and Summary. positive light three propositions of the highest historic value. First, that the English colonies in America, which were finally transformed into independent commonwealths through their severance from the mother country, were in a legal and constitutional sense involuntary and unconscious reproductions of the English kingdom, inevitable products of a natural process of political evolution. The process of growth through which the typical English state in America passes before it takes on its final form is broken into three stages. It first 1 See dissenting opinion of Mr. Justice Bradley, The Slaughter-House Cases p. 112. 2 Same case. Opinion of the court, P. 74. appears as a mere corporation created by royal authority with only such powers of local self-government as the crown sees fit to delegate. Out of the corporate body thus created emerges the colonial government with an executive head, a judiciary, and a legislative assembly which can do everything but violate the limitations imposed by the charter from which the dependent community derives its political existence. When the tie of dependence which binds the colony to the mother country is severed, the free community finally rises to the full stature of a sovereign state, wherein the people and not the crown are the source of all political authority. The royal charter is then either supplanted by or continued as the state constitution, wherein the people delegate to the three departments the right to exercise the sum of political power vested in them, subject to such restrictions only as are imposed by express constitutional limitations. Second, that when the sovereign commonwealths thus created were driven by the pressure of a common danger to unite in a confederacy, their first experiment resulted in the formation of a league, based upon the requisition system, which represented no advance whatever in the science of federal government; that this first departure from the entire course of their prior political experience soon ended in weariness, failure, and disappointment. Third, that when in the presence of the anarchy which the failure of the articles of confederation threatened, the English states in America were driven to make a fresh effort to construct a more efficient federal system, the exigencies of the occasion brought forth the most important and far-reaching political principle to which our career as a nation has so far given birth. That principle, which was that the federal head should operate directly on individuals and not on states, drew after it the most momentous consequences by forcing the construction of a "composite state," divided, as the individual states were divided, into three departments, legislative, executive, and judiciary. At this point the creative work of the framers ended and the work of reproduction began. In the organization of the three departments the framers of the present federal constitution reproduced, as far as it was possible, the English constitutional system in the form in which it had reappeared in the constitutions of the several states. The analysis which has been made therefore results at last in the conclusion that the typical English state in America was the fruit of a process of involuntary and unconscious growth, that the federal republic of the United States was the fruit of a process of voluntary and conscious reproduction. The second federal constitution was made, as far as it could be made, after the English model; but it might have been made as the earlier and laxer union was made on an entirely different model. Such a contrary course might have been pursued, and yet it was more than natural that men of a highly conservative temper, who were intimately familiar with the English constitutional system in the form in which it had reappeared in the several states, should have applied it, so far as it could be applied, to the organization of the federal republic. "Although the framers of our constitution were without any grasp of the modern conception of the historical continuity of the race, they revered the ancient constitutional traditions of England. And thus it came to pass that Magna Carta, the Acts of the Long Parliament, the Declaration of Right, the Declaration of Independence, and the Constitution of 1787, constitute the record of an evolution." If that "The gov be true, then the Constitution of the United States was not a the United spontaneous creation; it was the final product in a new soil States is of a sturdy plant transplanted from an island world where, in sult of specomparative isolation, it had been slowly maturing for centuries. In the open sunlight of the new land the later growth has been both strong and rapid; in the vast domain of the New World the old plant has found room for unlimited expansion. The history of this later development cannot be severed from that of the earlier and more tedious process of growth which made it possible. The life of the plant is an indivisible whole, and unless it is studied as a whole its real history can never be fully mastered. That conviction has imparted to the weary task essayed in this work a definite and practical purpose. In attempting to unfold the history of the constitutional growth of the English kingdom in one unbroken story the author has followed the only plan upon which, in his humble view, can ever be written an exhaustive commentary upon the constitution of his country. 1 W. T. Brantly's essay on the "Formation of the Federal Constitu tion," in Southern Law Review, August, ernment of not the re cial crea tion, but of evolution." [A psychological explanation of the tendency of a race to reproduce in a new land the institutions of the old (see page 15, note 1), may be found in Mr. Herbert Spencer's statement (Principles of Psychology, vol. 1, p. 422, Am. ed.) that "Hereditary transmission applies to psychical peculiarities as well as to physical peculiarities; while the modified bodily structure produced by new habits of life is bequeathed to future generations, the modified nervous tendencies produced by such new habits of life are also bequeathed; and if the new habits of life become permanent the tendencies become permanent." The same idea has been thus expressed in another form in Crane and Moses' Politics, p. 70: "The long continuance of a people under any given political order engenders a habit of political thought and action which ripens into a political instinct, and becomes powerful in determining the form of institutions and the direction of political progress. . . . And it is this political instinct that must be taken account of if we would fully understand later political progress; it is in its force and persistence that we discern the main cause of that tendency displayed in kindred natures to preserve in their governments the essential features of the primitive political institutions of the race to which they belong."] [My friend, the Hon. Kemp P. Battle, President of the University of North Carolina, has lately written me in regard to the case of Bayard v. Singleton (see p. 47, note 2), as follows: "North Carolina contests the honor with Rhode Island. The North Carolina judges who rode circuit, but who were also supreme court judges, refused, in May, 1786, to dismiss an ejectment writ on affidavit of the defendant that his title was derived from confiscation sale, the general assembly having enacted a law requiring such dismissal when such an affidavit should be made. Did Rhode Island decide earlier than May? I have found no proof that she did." The Hon. A. M. Waddell, of North Carolina, in a recent publication, thus puts the matter: "While it is true that the Rhode Island case was the first one decided, it is equally true that before that decision was rendered Iredell had made a powerful and conclusive argument in the North Carolina case (which was pending before the Rhode Island case arose), and had followed it up by publishing in the New Berne papers of August 17, 1786, an address to the public on the subject." As New Berne was the author's birthplace, he may be pardoned for a special interest in the subject.] BOOK I. THE OLD-ENGLISH COMMONWEALTH. CHAPTER I. THE TEUTONIC ORIGIN OF ENGLISH INSTITUTIONS. character of the Conti 1. DURING the fifth century, four of the Western provinces General of the Roman Empire-Britain, Gaul, Italy, and Spain Teutonic were in turn overrun by successive hordes of Teutonic invad- conquest on ers who came to settle down permanently on the conquered nent. soil. Out of the fusion of the Teutonic settlements made in Britain between the middle of the fifth century and the end of the sixth has grown the English nation; 2 out of the rude systems of social and political life which the settlers brought with them in their blood and bone from the fatherland has grown the English Constitution. With the founding of the Teutonic settlements in Britain the history of English institutions really begins. In order fully to grasp the early history of these settlements, in order clearly to point out the several vital particulars in which they differed from all other Teutonic settlements made upon Roman soil, it will be necessary to resort to a contrast for the sake of illustration. Within the continental provinces of Italy, Gaul, and Spain, Rome had made a profound impression upon the whole fabric of social and political life. The language, the laws, the institutions, of the people were thoroughly Roman. Roman roads led to Roman cities, in which were contained 1 For a list of the monarchies established by the Teutonic invaders during the interval which elapsed between the beginning of the fifth century and the end of the sixth, see Guizot's Hist. Freeman, Origin of the English |