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the gods below, establish it among men; nor deemed I that thy
decree--mere mortal that thou art--could override those unwritten
and unfailing mandates, which are not of to-day or yesterday, but
ever live and no one knows their birthtide."

Five centuries later the greatest of the Roman lawyers and orators,
Cicero, spoke in the same terms of a higher law, "which was never
written and which we are never taught, which we never team by reading,
but which was drawn by nature herself."

The Roman jurists gave it express recognition. They always recognized
the distinction between _jus civile_, or the law of the State, and the
_jus naturale_, or the law of Nature. They nobly conceived that human
society was a single unit and that it was governed by a law that was
both antecedent and paramount to the law of Rome. Thus, the idea of a
higher law transcending the power of a living generation, and therefore
eternal as justice itself--became lodged in our system of jurisprudence.
Nor was the Common Law wanting in a recognition of a higher law that
would curb the power of King or Parliament, for its earlier masters,
including four Chief Justices (Coke, Hobart, Holt, and Popham),
supported the doctrine, as laid down by Coke, that the judiciary had the
power to nullify a law if it were "against common right and
reason."--(_Bonham's Case_, 8 Coke Reports, 114.)

This view as to the limitation of government and the denial of its
omnipotence was powerfully accentuated in America by the very conditions
of its colonization. The good yeomen of England who journeyed to America
went in the spirit of the noble and intrepid Kent, when, turning his
back upon King Lear's temporary injustice, he said that he would "shape
his old course in a country new." Was it strange that the early
colonists, as they braved the hardships and perils of a dangerous
voyage, only to be confronted in the wilderness by disease, famine and
massacre, should fall back for their own government upon these primal
verities of human society, and claim not only their inherited rights as
Englishmen, but also the peculiar privileges of pioneers in an
unconquered wilderness?

This spirit of constitutionalism in America, which culminated in the
Constitution of the United States, had its institutional origin in the
spacious days of Queen Elizabeth. That wonderful age, which gave to the
world not only Shakespeare, Spenser and Jonson, but also Drake,
Frobisher an