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LAW OF THE LAND

IN the Magna Charta of King John, the most significant expression in its most celebrated clause appears a phrase familiar now, unknown till then,“ per legem terrae”—by the law of the land. It indicates there at once the criterion and the bulwark of the liberties of Englishmen, and, with its context, introduces for the first time into the theory of civil government, and crystallizes into language not destined to perish, the idea long moulding and shaping in the unlettered Saxon mind, that human rights are the foundation, and not the concession, of human authority.

Whose phrase it was, we do not know. It was inscribed there by a forgotten hand. It has not been rare in the growth of the English tongue that some new form of words, struck as this was out of the heat of a critical time, and compressing as this does a great thought into small compass, has entered at once and for always into the general speech of men. But it is the meaning rather than the origin of the words I have quoted from the Great Charter that I desire to consider. They are repeated oftener than they are understood. It may be useful, possibly, in this day of many novelties, to recur to their original significance, and to trace their relation to the political fabric which is the common inheritance of all our race.

I ask your attention, therefore, to some observations, of necessity very general and very brief, upon “The Law of the Land.”

The term is often made use of in a vague way, as including all the law which has force or is administered in the country. I do not so understand it. I regard and shall employ it as embracing only that which is fundamental. I conceive the law of the land to be the law that runs with the land, and descends with the land. Not the general mass of changeful legislation, or judicial decision “perplexed in the extreme”; but that higher law under which legislation itself obtains its authority, and courts their jurisdiction.

It was in this sense, beyond doubt, that the words were employed in Magna Charta. Otherwise the guarantee of personal liberty there contained would altogether lose its force. It would no longer stand declared that the liberty of the subject shall be inviolable by government; but only that it shall find its measure and its superior in whatever may have the form or force of law for the time being. And the charter would merely have served to re-establish the old system of arbitrary power, which it was designed to put an end to.

In the written Constitution of the United States this distinction is clearly brought out. The fundamental personal and political rights which may not be infringed are enumerated and set forth, and are placed beyond the reach of any department of the government. The domain of constitutional law is thus completely separated from that of statute law.

The unwritten Constitution of Great Britain, as universally understood, is of the same effect. Though

its ultimate construction is intrusted to Parliament, that body is equally bound to refrain in legislation from infringement of constitutional rights. It has never in recent times disregarded the limit thus imposed upon its action.

It is to be remembered, therefore, as the starting-point necessary to a clear comprehension of the law under which we live, that it consists of two great component parts, differing widely in their character, the one raised upon the other—the law that changes, and the law that does not change. The unchangeable law is that which protects the necessary and superior rights of man.

The theory upon which our system of government rests is that mankind possesses certain natural rights, usually described as those of life, liberty, and property, indispensable to human freedom and happiness. That these rights are not derived from, but are antecedent to, government, which is instituted for their maintenance as its first and principal object. That it can never be allowed, therefore, to infringe or disregard them, nor to fail to offer redress for their invasion. And that when it ceases to respect and uphold them, the obligation of allegiance terminates, and the right of revolution begins.

These constitutional principles are of perpetual duration, and of perpetual authority, because the natural rights they maintain are of perpetual obligation. No change of time or circumstance, no new discovery in political science, no modification of the forms of government can affect their validity, or restrict their control.

The principles of law which I have thus endeavored to state belong exclusively to the Anglo-Saxon race. They are the distinctive characteristic of the common law of England, which is likewise the common law of the English-speaking race everywhere. In no other system are they to be found.

They were the offspring of no man's creation, the product of no man's brain. Through centuries of vigorous Saxon life, through much oppression and violence, through the rise and fall of kingdoms, and wars and tumults innumerable, the great idea that

underlies free government slowly ripened into perfec| tion. It found its first definite and permanent ex

pression in Magna Charta, and became there the foundation of English law, to distinguish it thenceforth from all other law, and to conduct the people to whom it belonged, and their descendants, to a prosperity which the world had not seen before.

I do not mean to say that under no other system of government are the personal rights maintained. They may be upheld to a greater or less extent, and possibly to the full extent, under others. A wise and humane despot might promulgate a code of laws which should afford as complete a security to these rights, while it lasted, as the law of England does. But under no other theory than ours can they be assured of a permanent protection. In governments based upon different principles, personal rights, so far as they exist, are derived from the governing power, which may, therefore, at any time abridge them or take them away. Human experience has shown that rights which are thus conferred are, sooner or later, lost. It is only when they are conceded to be inviolable, and when the observance of them by government becomes the condition of its existence, that they ever can be ! permanently safe.

There is still another branch of the constitutional law which is practically unchangeable in its character. To the protection of the cardinal rights, it has been found that certain political institutions and certain juridical principles and processes are necessary. The division of government into three independent branches, the executive, the legislative, and the judicial; representation in Parliament; the maintenance of courts of equal justice, the writ of habeas corpus, the trial by jury; these, and other principal features in the administration of civil authority, are not of themselves essential to human enjoyment. They are only so many devices shown by experience as well as I by reason to be indispensable to the just protection of the rights that are essential. The fundamental law divides, therefore, into two branches—the principles that define human rights, and the machinery established for their security.

Upon this foundation of constitutional principles is reared that other portion of the general structure of the common law which I have referred to as the law that is subject to change. It is deduced from these principles by their gradual application to the various relations of the individual to his fellows and to the community. As civilization becomes more exigent, society more artificial, industry and business more various and complicated, and property more intricate in its forms and titles, the simple principles in which law has its origin require to be developed and extended. New relations spring up, new regulations are found necessary, fresh remedies have to be sought for. To

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