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1. Liberty of the Press.—Jeremy Bentham, in his letter, written in 1820, to the Spanish people on the subject of the freedom of the press, says: "Spaniards! The Madrid intelligence of the prosecution of a newspaper editor for comments on the Madrid system of police, and of the proposed law against political meetings, has just reached me. I am astounded! What? is it come to this? So soon come to this? The men being men, of their disposition to do this, and more, there could not be any room for doubt. But that this disposition should so soon ripen into act, this (I must confess) is more than I anticipated, that the impatience of contradiction, not to say the thirst for arbitrary power, should so soon have ventured thus far; these in my view are of themselves highly alarming symptoms. By the prosecution, if successful, I see the liberty of the press destroyed; by the proposed law, if established, I see the almost only remaining check to arbitrary power destroyed. Taken together, they form a connected system—these two measures. By the authors of this system you have of course been told, that it is indispensably necessary-necessary to order, to Good order, to tranquillity-and perhaps honorable gentlemen may have ventured so far into the region of particulars and intelligibles as to say, to good government, and some other good things. Spaniards ! It is neither necessary, nor conducive to, nor other than exclusive of, any of those good things. What says experience ? In the Anglo-American United States (alas ! alas! when Bentham wrote he wrote truth, but were he living now he could scarcely refer, with any good effect, to this country to support his views), of the two parts of this systein, neither the one nor the other will you see. No prosecution can there take place for anything written against the Government, or any of its functionaries as such. No restriction whatever is there on public meetings held for any such purpose as that of sitting in judgment on the Constitution-on any measures of the Government—or on any part of the conduct of any of its functionaries. There is no more restriction upon men's speaking together in public than upon their eating together in private.
“Against the allowance of the liberty of the press, considered with a view to its effect on the goodness of the government, no arguments that have been or may be adduced will bear the test of examination.
“I. First comes dangerous. Dangerous it always and everywhere is; for it may lead to insurrection, and thus to civil war; and such is its continual tendency.
"Answer : In all liberty there is more or less of danger; and so there is in all power. The question is—in which there is most danger–in power limited by this check, or in power without this check to limit it. In those political com. munities in which this check is in its greatest vigor, the condition of the members, in all ranks and classes taken together, is, by universal acknowledgment, the happiest. These are the United States, and the kingdom of Great Britain and Ireland. In the republic this liberty is allowed by law, and exists in perfection : in the kingdom it is proscribed by law, but continues to have place, in considerable degree, in spite of law.
“II. Next comes needlessness. To the prevention of misgovernment, the other remedies that government itself affords, are adequate. The rulers in chief, whoever they are, have nothing so much at heart as the happiness of all over whom they rule.
“Answer : The rulers in chief, whoever they are, if they are men, have their own happiness more at heart than that of all over whom they rule put together: the very existence of man will in every situation be found to depend upon this general and habitual self-preference.
“ As to wisdom, it can never be so near to perfection without as with these all-comprehensive means of information, which nothing but the liberty here in question can give. The characteristic, then, of an undespotic government–in a word, of every government that has any tenable claim to the appellation of a good government--is the allowing and giving facility to a free communication of thought by vehicles of all sorts; by signs of all sorts ; signs to the ear, signs to the eye, by spoken language, by written, including printed language, by the liberty of the tongue, by the liberty of the writing desk, by the liberty of the post office, by the liberty of the press."
ITS OFFICE IN A GOVERNMENT OF LAWS-ITS HIGH TRUSTS AND DUTIES-SUSPECTED
AND CONVICTED PERSONS-HOW REGARDED_HABEAS CORPUS-EXTRA-CONSTITUTIONAL MEASURES-DEVICE FOR VIOLATING LAWS-BOLD USURPATIONS
THE UXION A BROTHERHOOD-ACCOUNTABILITY OF FEDERAL OFFICIALS TO THE
JUDICIARY-THE EQUILIBRIUM OF THE SYSTEM.
The judicial department of a free system of laws, is by far the most important of all the branches of the public service. With no legislative power or partisan influence, its sphere is confined to the execution of the weighty trusts devolved upon it, by the state on the one side, and the people on the other. It is purely an umpire, with power to enforce existing laws. It contemplates all public institutions as a party, and recognizes its duty to protect them. The people are also a party, and entitled, in like manner, to protection. The judicial power of the state, in this general sense, is called upon to exercise, what may be termed, political functions. The relations between the people and their Government are purely reciprocal. Obedience to laws is no more a duty of the former, than their honest enforcement by the latter. Their violation, by either, is a crime.
These reflections indicate the general office of the judiciary. It is the exclusive judge of what is due to the state and what is due to the citizen.
The constitution of the Federal Judiciary limits its power to nine specific trusts :
1. “To all cases in law and equity arising under this Constitution, the laws of the United States, and the treaties made or which shall be made under their authority.
2. “ To all cases affecting ambassadors, other public ministers, and consuls.
3. “To all cases of admiralty and maritime jurisdiction.
4. “To controversies to which the United States shall be a party.
5. “ To controversies between two or more States.
8. “ Between citizens of the same State, claiming lands under grants of different States.
9. “Between a State and the citizens thereof and foreign states, citizens, or subjects.”
The first of these specific delegations of power, is far more general and comprehensive than the others, extending to all cases in law and equity arising under the compact of Union. If this language bears any signification, beyond a mere limitation of jurisdiction to the federal system, it makes the judges of the Supreine Court of the United States a tribunal, with exclusive power to determine, not only the rights of litigant parties in suit, but the constitutionality of all federal laws which shall be brought before it for enforcement. In this respect, the "judicial power," as it is denominated, is intrusted with the very highest of political functions. It is as much its duty to interdict the enforcement of illegal acts as to execute those which are legal.
It has been found, in the practical life of every description of administration, that the judicial authority has maintained, through every trial, a far higher tone; more incorruptible integrity; more capacity and disposition to allay excitement, reconcile differences, and adjust disputes personal and general, than any other branch of the public service. Less ostentatious than the legislature, unobtrusive and almost unnoticed in its deliberations; earnest, profound and impartial in its decisions, it commands public confidence, and exacts a willing obedience to its awards. It is preëminently the tribunal of the people; an umpire, with power, not only to determine all controversies between persons, but an international commission to adjust questions of difference between the States and the Union and the citizen and the Union.'
In the enforcement of all local laws, embracing the internal administration of justice through the whole range of civil institutions, the collection of debts, the punishment of crime, the maintenance of order, the judiciary is the mainspring of the political machine. It is, to all intents and purposes, the animating principle of the state.
Under general regulations, covering the ordinary intercourse of life, it exercises absolute power. The character of its administration is indicated by the fact, that its decisions constitute a body of laws, of higher merit and wider influence than those ordained by the legislature. It is impossible indeed to conceal this feature of the government of the States and the Union. That there is something in the structure of these great departments of administration, or in the nature of the duties assigned to each, which enables the judiciary to command higher qualifications and intellect, we do not question.
In this connection it is a noteworthy fact that of all the complaints made by parties and sections against the general Administration, involving, in many cases, alleged violations of the Constitution, and in others, of fundamental principles of political economy, not one has been laid at the door of the judiciary. Usurpation of authority has been charged upon the Executive and the legislature, and, at times, a general tendency to disregard constitutional obligations and duties manifested; but we know of no instance, beyond the lowest partisan circles, where the judicial authority of the States or the nation has been held responsible for the least offence of the kind.
It must not be admitted, in explanation of this, that its office is comparatively of little account. On the contrary, in a government of laws, it is by far the highest, most important and responsible of all the institutions of state. Its range is broader; its duties more weighty and elaborate; its government more complete and universal ; its trusts more sacred; and, we may add, its decisions more satisfactory, than any other department. It is the state, to all practical intents and purposes. When the privilege of the writ of habeas corpus was partially suspended in England, Mr. Burke denounced and declared it a dissolution of government. In this denunciation we see the truc theory of the English Constitution. It is a free system of laws, and such a system is impossible