the impotence of his, wrath.[2] Perhaps it would be straining words to call a transaction in which the consent was so one-sided a “contract,” but the idea of Magna Charta was derived from that of the town charters with which people were already familiar.  Thus a charter came to mean “a grant made by the sovereign either to the whole people or to a portion of them, securing to them the enjoyment of certain rights.”  Now in legal usage a charter differs from a constitution in this, that the former is granted by the sovereign, while the latter is established by the people themselves:  both are the fundamental law of the land.[3] a The distinction is admirably expressed, but in history it is not always easy to make it.  Magna Charta was in form a grant by the sovereign, but it was really drawn up by the barons, who in a certain sense represented the English people; and established by the people after a long struggle which was only in its first stages in John’s time.  To some extent it partook of the nature of a written constitution.

[Footnote 2:  Green, Hist. of the English People, vol. i. p. 248.]

[Footnote 3:  Bouvier, Law Dictionary, 12th ed., vol. i. p. 259.]

[Sidenote:  The “Bill of Rights” (1689).] Let us now observe what happened early in 1689, after James II had fled from England.  On January 28th parliament declared the throne vacant.  Parliament then drew up the “Declaration of Rights,” a document very similar in purport to the first eight amendments to our Federal Constitution, and on the 13th of February the two houses offered the crown to William and Mary on condition of their accepting this declaration of the “true, ancient, and indubitable rights of the people of this realm.”  The crown having been accepted on these terms, parliament in the following December enacted the famous “Bill of Rights,” which simply put their previous declaration into the form of a declaratory statute.  The Bill of Rights was not—­even in form—­a grant from a sovereign; it was an instrument framed by the representatives of the people, and without promising to respect it William and Mary could no more have mounted the throne than a president of the United States could be inducted into office if he were to refuse to take the prescribed oath of allegiance to the Federal Constitution.  The Bill of Rights was therefore, strictly speaking, a piece of written constitution; it was a constitution as far as it went.

[Sidenote:  Foreshadowing of the American idea by Sir Harry Vane (1656).] The seventeenth century, the age when the builders of American commonwealths were coming from England, was especially notable in England for two things.  One was the rapid growth of modern commercial occupations and habits, the other was the temporary overthrow of monarchy, soon followed by the final subjection of the crown to parliament.  Accordingly the sphere of contract and the sphere of popular sovereignty were enlarged in men’s minds,