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any State.' Suppose a duty on the export of cotton, of tobacco, or of flour, and a suit instituted recover it; ought judgment be rendered in such a case ? ought the judges to close their eyes on the Constitution and only see the law?
“ The Constitution declares that ‘no bill of attainder or ex post facto law shall be passed.'
“If, however, such a bill should be passed, and a person should be prosecuted under it, must the court condemn to death those victims whom the Constitution endeavors to preserve?
“No person,' says the Constitution, 'shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.'
“Here the language of the Constitution is addressed especially to the courts. It prescribes, directly for them, a rule of evidence not to be departed from. If the legislature should change that rule, and declare one witness, or a confession out of court sufficient for conviction, must the constitutional principle yield to the legislative act ?
"From these, and many other selections which might be made, it is apparent that the framers of the Constitution contemplated that instrument as a rule for the government of courts as well as the legislature.
“Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies, in an especial manner, to their conduct in their official character. How immoral to impose it on them if they were to be used as the instruments, and the knowing instruments, for violating what they swear to sup
“The oath of office too, imposed by the legislature, is completely demonstrative of the legislative opinion on this subject. It is in these words: “I do solemnly swear that I will administer justice without respect to persons, and will do equal right to the poor and to the rich; and that I will faithfully and impar. tially discharge all the duties incumbent on me as
according to the best of my abilities and understanding, agreeably to the Constitution and laws of the United States.'
“Why does a judge swear to discharge his duties agreeably to the Constitution of the United States, if that Constitution forms no rule for his government—if it is closed upon him, and cannot be inspected by him ?
“ If such be the real state of things, it is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime.
"It is also not entirely unworthy of observation, that in declaring what shall be the supreme law of the land, the Constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance the Constitution, have that rank.
"Thus the particular phraseology of the Constitution of the United States confirms and strengthens the principle supposed to be essential to all written constitutions--that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument."
S. Speaking of the attack upon security in France under the monarchy, Ben. tham says, under the head of General Confiscations : “I refer to this head those vexations exercised upon a sect, upon a party, upon a class of men, under the vague pretence of some political offence, in such manner that the imposition of the confiscation is pretended to be employed as a punishment, when in truth the crime is only a pretence for the imposition of the confiscation. History presents many examples of such robberies. The Jews have often been the object of them; they were too rich not to be always culpable. The financiers, the farmers of the revenue, for the same reason, were subjected to what were called burning chambers. When the succession to the throne was unsettled, everybody, at the death of the sovereign, might become culpable, and the spoils of the vanquished formed a treasury of reward in the hands of the successor. In a republic torn by factions, one half of the nation became rebels in the eyes of the other half. When the system of confiscations was admitted, the parties, as was the case at Rome, alternately devoured each other.
"The crimes of the powerful, and especially the crimes of the popular party in democracies, have always found apologists. “The greater part of these large fortunes,' it has been said, “have been founded in injustice, and that was only restored to the public which had been stolen from the public.' To reason in this manner is to open an unlimited career to tyranny; it is to allow it to presume the crime, instead of proving it. Ought so grave a punishment as confiscation to be inflicted by wholesale, without examination, without detail, without proof? A procedure which would be deemed atrocious if it were employed against a single person ; does it become lawful when employed against an entire class of citizens ? Can the evil which is done be disregarded because there is a multitude of sufferers whose cries are confounded together in their common shipwreck ?"
4. Commenting upon the fallacies in the Declaration of Rights by the French National Assembly in 1791, Jeremy Bentham remarks on its declaration that “ All men are born and remain free, and equal in respect of rights :"
“ All men are born free? All men remain free? No, not a single man; not a single man that ever was, or is, or will be. All men, on the contrary, are born in subjection, and the most absolute subjection—the subjection of a helpless child to the parents on whom he depends every moment for his existence. In this subjection every man is born-in this subjection he continues for years—for a great number of years—and the existence of the individual and of the species depends upon his so doing.
“What is the state of things to which the supposed existence of these supposed rights is meant to bear reference ?-a state of things prior to the existence of government, or a state of things subsequent to the existence of government? If to a state prior to the existence of government, what would the existence of such rights as these be to the purpose, even if it were true, in any country where there is such a thing as government? If to a state of things subsequent to the formation of government—if in a country where
there is a government, in what single instance_in the instance of what single government is it true? Setting aside the case of parent and child, let any man name that single government under which any such equality is recognized.
“ All men born free? Absurd and miserable nonseuse ! When the great complaint—a complaiut made perhaps by the very same people at the same time, is—that so many men are born slaves. Oh! but when we acknowledge them to be born slaves, we refer to the laws in being, which laws being void, as being contrary to those laws of nature which are the efficient causes of those rights of man that we are declaring, the men in question are free in one sense, though slaves in another-slaves and free at the same time-free in respect of the laws of nature-slaves in respect of the pretended human laws, which, though called laws, are no laws at all, as being contrary to the laws of nature. For such is the difference-the great and perpetual difference betwixt the good subject, the rational censor of the laws, and the anarchist-between the moderate man and the man of violence. The rational censor, acknowledging the existence of the law he disapproves, proposes the repeal of it; the anarchist, setting up his will and fancy for a law before which all mankind are called upon to bow down at the first word—the anarchist, trampling on all truth and decency, denies the validity of the law in question_denies the existence of it in the character of law, and calls upon all mankind to rise up in a mass and resist the execution of it.
“Al men are born equal in rights. The rights of the heir of the most indigent equal to the rights of the heir of the most wealthy? In what case is this true?
“ All men (i. e., all human creatures of both sexes) remain equal in rights. The apprentice then is equal in rights to his master; he has as much liberty with relation to the master as the master has with relation to him; he has ag much right to command and to punish him; he is as much owner and master of the master's house as the master himself. The case is the same as between ward and guardian. So again as between wife and husband. The madman has as good a right to confine anybody else as anybody else has to contine him. The idiot has as much right to govern everybody as anybody can have to govern bim. The physician and the nurse, when called in by the next friend of a sick man seized with a delirium, have no more right to prevent his throwing himself out of the window, than he has to throw them out of it. All this is plainly and incontestably included in this article of the Declaration of Rights; in the very words of it, and in the meaning—if it have any meaning. Was this the meaning of the authors of it?—or did they mean to admit this explanation as to some of the instances, and to explain the article away as to the rest ? Not being idiots, nor lunatics, nor under a delirium, they would explain it away with regard to the madman, and the man under the delirium. Considering that a child may hecome an orphan as soon as it has seen the light, and that in that case, if not subject to government, it must perish, they would explain it away, I think, and contradict themselves, in the case of the guardian and ward. In the case of master and apprentice I would not take upon me to decide ; it may have been their meaning to proscribe that relation altogether--at least this may have been the case, as soon as the repugnancy between that institution and this oracle was pointed out; for the professed object and destination of it is to be the standard of truth and falsehood, of right or wrong, in everything that relates to government. But to this standard, and to this article of it, the subjection of the apprentice to the master is flatly and diametrically repugnant. If it do not proscribe and exclude this inequality, it proscribes none; if it do not do this mischief, it does nothing.
“So again, in the case of husband and wife. Amongst the other abuses which the oracle was meant to put an end to, may, for aught I can pretend to say, have been the institution of marriage. For what is the subjection of a small and limited number of years in comparison of the subjection of a whole life? Yet without subjection and inequality no such institution can by any possibility take place; for of two contradictory wills, both cannot take effect at the same time.
“The same doubts apply to the case of master and hired servant. Better a man should starve than bire himself; better half the species starve than hire itself out to service. For, where is the compatibility between liberty and servitude? How can liberty and servitude subsist in the same person? What good citizen is there that would hesitate to die for liberty ?-and, as to those who are not good citizens, what matters it whether they live or starve ? Besides that, every man who lives under this constitution being equal in rights, equal in all sorts of rights, is equal in respect to rights of property. No man, therefore, can be in any danger of starving—no man can have so much as that motive, weak and inadequate as it is, for hiring himself out to service.”
5. “For the destruction of everything by which the constitution of this country has ever been distinguished to its advantage, no additional measures need be employed; let but the principles already avowed continue to be avowed—let but the course of action dictated by those principles be persevered in-the consummation is effected. As for the Habeas Corpus Act, better that the statute book were rid of it. Standing or lying as it does, up one day, down another, it serves but to swell the list of sham securities with which, to keep up the delusion, the pages of our law books are defiled. When no man has need of it, then it is that it stands; comes a time when it might be of use, and then it is suspended.”—BENTHAM.
6. The letter of Napoleon to M. Fouché, his Minister:
“M. Fouché: I read in The Journal de l'Empire of the 9th instant that at the end of a comedy, by Colin d'Harleville, this note occurs:
"Scen and permitted the printing and sale, pursuant to the decision of his Excellency, the Minister of General Police Senator. Dated 9th of this month. By order of his Excellency,
P. LAGARDE, Chief of the Division of the Liberty of the Press.' "I am astonished at these new forms, which the law only could authorize. If it were proper to establish a censorship, it could not be established without my permission. When my will is that the censorship shall not exist, I have a right to be surprised at seeing in my empire forms which may be good at Vienna and Berlin. If these be the result of an old usage, send me a report on it. I have a long time calculated the means of reëstablishing the social edifice, and now I am obliged to watch over the maintenance of public liberty. I do not mean that the French should become serfs. In France, all that is not prohibited is permitted; and nothing can be prohibited except by the laws and the tribunals, or by measures of high police, where public morals and public order are concerned. I repeat, I will not have a censorship; because every bookseller answers for the work he puts into circulation; because I have no wish to be responsible for the nonsense that may be printed; and because I will not allow a mere clerk to tyrannize over mind and mutilate genius.