« ForrigeFortsett »
cing freedom of speech and of the press and the largest measure of personal liberty, without a Constitution, Magna Charta, Bill of Rights, or any such law as the Habeas Corpus Act. So it is possible to maintain order, for a limited time, without the aid of civil institutions of any kind.
The general tendency of all self-governed communities is sufficient, under ordinary circumstances, to assure not only public tranquillity, but to enforce the rights of persons and property. Governments are ordained not alone to secure these ends, but so constructed as to be able to meet and overcome great trials and difficulties. To assure this, with greater certainty, organic laws are enacted. These laws govern the corporate body, just as statute laws govern the magistrate and the people. They are said to be supreme laws, not because they are irrepealable or indestructible, but because they are supreme over all the agencies of government, whose powers they define, whose duties they enjoin, and whose jurisdiction they determine. They are supreme over the executive, the legislature, and the judiciary. They constitute an official chart which should be ever present in their deliberations and ever control their action.
It is their office not only to direet what may be done, by the law-making, the executive, and judicial power, but, through the lastnamed department, declare what shall not be done—to command and to interdict action.
In addition to these obvious intendments of the organic law, it is one of its chief offices, in a free government, to define what interests and things shall be exempt from the operations of the polity -what, in the language of the Federal Constitution, "shall be reserved to the States respectively or to the people."
For instance, free government, being ordained exclusively in the interest of the people and for their protection in person and property, can never rightfully gain jurisdiction over either, except for the punishment of crime. The sacrifice of either, on any other ground, is sufficient to show that its ends have been perverted, and tbat, instead of a government of laws, it is a system of robbery, arson, murder, and personal aggrandizement.
Government is rightfully limited to the accomplishment of certain ends, all of which must accord with the public good and advantage. These are its only legitimate mission. It is certainly not necessary, in the maintenance of such a system, to take the property or interfere with the liberty of persons of the commonwealth. It is the right of every well-conducted citizen to say and publish what he wills, being always responsible to injured persons for the abuse of this right. He is never responsible to the Government, for any such abuse, because the policy of the state demands the utmost liberty of speech and the press. This is not only essential to the integrity of its administration, but it is that which has always been admitted to be the very soul of our institutions. These institutions signify general discussion, criticism, and condemnation. They are the product of free inquiry and speech. To admit the right to suppress either, would be exactly equivalent to the suppression of the Government. The silly pretence set up that it is necessary to keep them within reasonable bounds by political agents, is an impeachment of the laws for the protection of persons, because persons alone have a right to complain. The Government itself cannot be injured, except on the hypothesis that the agent for the time being is the state.
But we go farther than all this. The right of free speech and a free press is absolute, with or without constitutional guarantees. It is exempt from the operation of the polity—beyond its jurisdiction. No people in ordaining civil institutions are authorized to trench upon this right. It is original and inalienable. The cause of good government, of morality, religion, and human progress, forbids that it shall ever, under any possible circumstances, be surrendered by the people. It is their birthright, their weapon of defence against aggression and wrong. Without it they are subjects, not freemen. They have no right to yield up this natural gift of a beneficent God, because it is inalienable, and for a better reason, because no people have a right to go from light into political darkness.
The Federal Constitution, we repeat, was framed on this theory. It expressly declares that the powers not delegated to the Union are “reserved to the States respectively or to the people.” The latter portion of this clause bears no other signification than the reservation of certain rights, ordinarily embraced in political governments, " to the people.” These include exemption from arrest, except for crime, to be determined by judicial authority; all rights of property ; perfect religious freedom; free speech and a free press. The States of the original confederation, without a single exception, recognized these rights as beyond their legal jurisdiction. The safeguards thrown around them in the Amendments to the Constitution, evince alike distrust of Federal agents and a determination to protect them.
It will be found, we apprehend, under every description of polity, that the recognition of this principle would not only impart stability to the state, but be the source of its greatest social, industrial, and intellectual progress.
It is said of the common law, that it is the perfection of reason. If so, it is because its authors have treated all subjects of investigation in absolute freedom. In this spirit it is time to investigate not only what are the legitimate ends and mission of government, but what interests should be reserved from its operations. These reservations or limitations, we imagine, will be seen to be far more important matters and more effective guarantees of stability, strength, and efficiency, than its positive grants. It is nothing more than the simple recognition of the well-established principle, that power is a source of weakness as well as strength. When unlimited, it is apt to degenerate into licentiousness, and thus make an enemy of one, on account of its moral failings, and of another, by reason of its illegal oppressions. It is seen, in practical life, which is the only test of usefulness, to be just as necessary to withhold as to confer authority upon government. We refer, of course, to a free system.
Now, while the Federal Constitution is an open record, defining every power that may be exercised; expressly reserving certain rights of person and property; prescribing, in numerous cases, the mode of prosecution for offences, and measuring the extent of punishment, as for treason ; declaring what magistrates and others shall
gain jurisdiction of alleged offences, is it not true, from whatever motive, that quite all these provisions of the law have been either disregarded or annulled, for the time being, by the Administration ? Let us see :
Trial by jury has been habitually denied.
Persons have been arrested and imprisoned by military authority, in utter disregard of the Constitution.
Private property has been taken for public use, by military orders.
Freedom of speech and the press has been suppressed by like orders.
Property has been confiscated by legislative and executive authority, in utter violation of the Constitution.
Persons have been seized, tried by military commission, and transported beyond the jurisdiction of the States, by express order of the President.
The privilege of the writ of habeas corpus has been suspended, in the loyal States, and all the machinery of martial law put in operation throughout the whole Union.
The United States have been transformed by these measures into a purely military government, and the civil authority everywhere subjected to the arbitrary orders of the commander-in-chief of the army and navy and the militia, in actual service.
This array of treason to the Union and to every principle of free government, embraces only the most prominent offences committed against the constitutional authority of the United States by the people's representatives. They are, too, not only avowed and continued by the ministers, but were explicitly indorsed and justified by the Republican National Convention at Baltimore. They stand, then, as their settled maxims of government. It is claimed that these proceedings have been instituted in aid of the Constitution. Lord Brougham, speaking of the proposed suspension of the Habeas Corpus Act, in 1817, says:
“ It is said by those who now call for the suspension of the Habeas Corpus Act, that in times of danger the Constitution requires support. I beg leave to protest against this doctrine. The Constitution of England is not made merely for fair weather, and if it cannot defy and outlive the storm, it is not worth preserving. If this measure is unfortunately passed, I hope never again to be compelled to listen to the pharisaical cant of how much happier and more free the subjects of this country are than the nations by whom they are surrounded; for what does the suspension of the Habeas Corpus Act prove, but that the Constitution of England is of no use, and the liberty of England of no value ? "
We allude to this subject, not to discuss the character of the existing Administration, but to show how necessary it is that a free system of laws should be restricted in the exercise of powers, in order that it may command the confidence of the people, without which it cannot and ought not to be successful. This confidence is an outbirth of freedom, and a vital element of all social, political, and industrial progress. But it can never be attained, in this country or in England, except on condition of the entire protection of person and property. A failure to do this, from whatever cause, is a compound offence here; an offence against the States, against the citizen, and against the legitimate government of the Constitution,
It is due to candor to say, that the people of the United States, though sincerely attached to a free system of laws, entertain very questionable ideas, upon a single point, at least, in reference to what should constitute such a system. They admit the right to ordain a constitution, conferring unlimited authority upon the legislature to enact and enforce such laws as their constitution may permit or command. This we hold to be a radical and damaging error.
There is no right, surely, in the people, in framing government, to do more than is absolutely necessary to be done, in order to put into operation a perfect system of laws. For instance, trial by jury, by its long and beneficent agency, has become an essential feature of free government-a sort of vested right, which persons charged with offence may invoke, and which there is no power in the state to withhold. Freedom of speech and the press, the rights of the habeas corpus, and the subordination of the military to the civil authority, and many other interests of the same nature, are necessary elements of this species of government. They are rights which the citizen cannot be called upon to surrender, for the simple reason, that jurisdiction by the state over them would add nothing to its strength or efficiency, but take much from both.
Military authority, in the United States, is purely ministerial in its nature. It may enforce laws in certain cases, ordained by com. petent authority; but it can never, under any circumstances, exer