« ForrigeFortsett »
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 complaint 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.
“ All 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 as 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 him. 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 hire 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:
Seen 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,
“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.
THE HABEAS CORPUS ACT.
OFFICE-NECESSARY TO FREE GOVERNMENT-HOW SUSPENDED-THE
RIGHT OF THE PRESIDENT AND CONGRESS DENIED ORIGINATED WITH US
THE MILITARY POWER-CONSTITUTION SUSPENDED BY
OVERTHROW OF JUDICIARY-MILITARY GOVERNMENT A USURPATION-HABITS
AND TRADITIONS A PART OF OUR SYSTEM-DEMORALIZING EFFECTS OF MIL
ITARY RULE UPON THE CIVIL POWER.
The Act of Habeas Corpus simply provides that all persons deprived of their liberty, shall have the right to demand a review of the proceedings of magistrates or others leading thereto. This right is utterly valueless to guilty parties, and was given solely in the interest of accused or suspected persons, in order that the innocent may be protected against the tyranny or usurpation of those in authority. The Constitution of the United States makes it a part of our political system, not by express provision, but by the restriction it imposes upon the authorities, in reference to its suspension. It existed in all the States of the original confederation, and, as was evidently supposed, transmitted to the government of the United States, as a settled element in a free system of laws.
It is one of those provisions which can be removed only by showing that freedom is an evil, and absolutisin a benefit. It is incapable of doing the least damage to a free state, of preventing the execution of the least rightful authority, of shielding offenders, or in any way defeating the ends of justice.
It constitutes a sort of reserve force against those intrusted with the right of arrest, with power to keep them within the scope of the laws, and with no other authority whatever. It is purely protective in all its features; to the state, because it is the compass of its administration; to the citizen, because, while it never shields an offender, it never permits innocent parties to be confounded with the guilty.
Among the many perplexing anomalies which have arisen in the course of our political career, the disclosure of hostility to the free exercise of the rights of the Habeas Corpus Act, is the most difficult of solution. With no party or citizen who dares to oppose it, we find it suspended, not, according to the Constitution, by the supervening power of the army, in cases and places of rebellion, but by the proclamation of the President of the United States, over the entire Union.
The right to suspend the writ is given in these words (1st Art., 9th sec., Con. U. S.):
“The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."
It will be observed that the authority of suspension is here declared, while nothing is said of the manner or by whom it may be done. In the absence of all reflections upon the nature of the government, and of the State systeins, existing at the time of the adoption of the Constitution, the inference would be fair, that the President of the United States might legally take jurisdiction of the case and suspend the writ. But it is clearly seen that no such power was ever intended to be lodged in his hands, simply because, by another provision of the Constitution, he is made commander-in-chief of the army. It is not possible that the head of the army was clothed with affirmative power to subordinate the least civil authority to his command.
In this case, too, we have the origin of the writ, as it were, in our own family. It grew out of a controversy involving the alleged right of the Crown of England to imprison, at will, its subjects. This right the people not only denied, but affirmed that they would be held alone in answer to the laws. In order to effect this great end of free government, they enacted that all freemen should have the right to be heard before the courts, whenever their liberties had been taken away without due warrant of law. This was more than a simple declaration that they would be governed by laws, and not by the arbitrary will of an executive magistrate.