OF THE

FEDERAL AND STATE CONSTITUTIONS

OF THE

UNITED STATES

WITH AN HISTORICAL STUDY OF THEIR PRINCIPLES

A CHRONOLOGICAL TABLE OF ENGLISH

SOCIAL LEGISLATION

AND

A COMPARATIVE DIGEST OF THE CONSTITUTIONS
OF THE FORTY-SIX STATES

BY

FREDERIC JESUP STIMSON

Professor of Comparative Legislation in Harvard University; Late Advisory Counsel
to the United States Industrial Commission; Massachusetts Commissioner on
Uniformity of Laws; Member of Massachusetts Committee
on Corporation Law

Author of "American Statute Law," "The American Constitution"
"Handbook of Labor Law of the United States"

etc., etc.

BOSTON

THE BOSTON BOOK COMPANY

1908

BY FREDERIC JESUP STIMSON

THE UNIVERSITY PRESS, CAMBRIDGE, U. S A.

PREFACE

AMERICAN constitutional law has had its broadest development in the last twenty years. Since the cardinal meaning of the Federal Constitution was settled by the early great decisions, and the relation of the States to the Federal Government once decided by the Civil War, there has, in a century, been comparatively little growth until the last decade or two. The enormous mass of litigation on the meaning of the "obligation of contract" and of the words "commerce among the States" related, after all, to but two short phrases in that great document; and in the latter of these two instances the decisions of the last twenty years far exceed, both in number and importance, all that went before. Constitutional law, therefore, like the law of labor and free contract, is in the United States "a live science." Both in the States and in the nation it has had its most active discussion recently; and the matter bids fair to increase still more at the hands of the next generation. The great social principles, of the right of the individual, both to property and even to personal liberty, as against the will of a majority or an organized minority having the ears of the executive and the legislative branches of government, have got to be resettled — the great political questions of the social and jurisdictional (not political) relation of the States to the Federal Government, the right of the States to their own customary law and their own police power, have, it seems, once more to be fought over. No apology, therefore, is offered for presenting this work at this time. It is prepared primarily for the author's use in his classes at Harvard University; not, therefore, in the first instance, for a practising lawyer; rather for the citizen and the student of politics. Moreover, considerations of space and otherwise have made it advisable to duplicate no work that has been done before. No effort, therefore, has been made to supersede such classics as, in America, Cooley's "Constitutional Law"; and for

English history I have largely relied upon Dicey's "Law of the Constitution"; Taswell-Langmead, "On English Constitutional History," Hannis Taylor, and Stubbs' Charters; while for most of the sources of information I have gone directly to the "Statutes of the Realm," the usual edition of which is Ruffhead's "Statutes at Large," London, 1769, but the original folio "Statutes of the Realm," when procurable, is to be preferred, as the "Statutes at Large," like most digests or selections, has a curious faculty for omitting what is historically most interesting. Mention in the United States should also be made of "Miller's Lectures," Patterson's "The United States and the States under the Constitution," and McClain's "Constitutional Law." The book is not, however, intended for a case lawyer. I have cited cases only when the proposition is in some doubt or my authority not easily discoverable. In like manner, at least in the prefatory essays (Book I), I have sought to lay down the general principles and the broad antitheses, not too much delaying the line of discussion to consider exceptions or qualifications. These are usually to be found in the footnotes to Book III. What has been principally sought is to give the history, origin, and present tendency of American Constitutions, both Federal and State; and for this purpose the bulk of the work is made up of a careful comparative presentation of the forty-six State Constitutions annotated with the corresponding provisions of the Federal Constitution, and voluminous footnotes. In Book II is pre

sented a chronological digest of the more important statutes referring to English constitutional principles, or even common law principles which became in the lapse of centuries so universal as to be almost part of the "unwritten Constitution"; and also a table of excerpts from all the great constitutional documents, arranged chronologically, thus showing their growth from the simple phrasing of Magna Carta to the verbose essays of the Massachusetts Bill of Rights. Books II and III, therefore, represent an attempt at comparative study never, I believe, hitherto made; while the first Book is intended for a broad historical essay, not too technical, on those parts of constitutional law which now most concern us, and have, indeed, been most neglected by other writers; for it is very recently

That is, before 1886, when the first edition of the present Book I appeared, without footnotes, in the author's "American Statute Law," Vol. I. Dr. J. Q. Dealey, of Brown Univer

sity, has recently published a valuable essay on salient features of the State Constitutions, but without citations. (Am. Acad. Pol. & Soc. Science, Supp., November, 1907.)