Thomas Jefferson and Patrick Henry and Henry’s Virginia Resolutions of 1765

PatrickHenryPatrick Henry was an early friend and companion of Thomas Jefferson. He was a jovial young fellow noted for mimicry, practical jokes, fiddling and dancing. Jefferson’s holidays were sometimes spent with Henry, and the two together would go off on hunting excursions of which each was passionately fond. Both were swift of foot and sound of wind.

Deer, turkey, foxes and other game were eagerly pursued. Jefferson looked upon Patrick Henry as the moving spirit of all the fun of the younger circle, and had not the faintest idea of the wonderful talents that lay latent in his companion’s mind.

See also: Patrick Henry may well be proved a Prophet as well as a Statesman

And, Henry too, did not see in the slender, freckled, sandy-haired Jefferson, the coming man who was to be united with him in some of the most stirring and important events in American history.

Jefferson did not realize that this rustic youngster, careless of dress, and apparently thoughtless in manner, and sometimes, to all appearance, so unconcerned that he was taken by some to be an idiot, was to be the flaming .tongue of a coming Revolution. Henry did not dream that this fiddling boy, Jefferson, was to be the potent pen of a Declaration which was to emancipate a hemisphere.

One day in 176o, just after Jefferson had entered upon his college studies at Williamsburg, Henry came to his room to tell him,that since their parting of a few months before, after the Christmas holidays, he had studied law, and had come to Williamsburg to get a license to practice. The fact was he had studied law but six weeks, and yet felt himself able to pass the examination. The examination was conducted by four examiners. Three of them signed the license. The fourth, George Wythe, refused his signature. But Henry was now duly admitted to the bar. He went back, however, to assist his father-in-law, Mr. Shelton, in tending his tavern, and for four years, practicing occasionally, he waited his time.

In May, 1765, Henry was elected to the House of Burgesses which met at Williamsburg. While in attendance as a member Henry was the guest of young Jefferson. Henry presented a rustic appearance. His dress was coarse and worn. His fame had not become fully known at Williamsburg, “and he moved about the streets unrecognized though not unmarked. The very oddity of his appearance provoked comment.”

In the Assembly were some of the most brilliant and distinguished men in the Colony. Among them were Peyton Randolph, George Wythe, John Robinson, Richard Henry Lee, and Edmund Pendleton.

Dignified manners prevailed among the members. An elaborate and formal courtesy characterized them in their proceedings. They were polished and aristocratic men, not specially interested in the welfare of the common people. They were strongly desirous of perpetuating the class distinctions observed in Virginia society. A very marked contrast was apparent between them and the tall, gaunt, coarse-attired, unpolished member from Louisa.

Not being personally known to the majority of the House, little notice was taken of him, and no expectations of any particular influence to be exercised by him upon its deliberations were expected. When the news of the passage of the Stamp Act reached the assembly, amazement and indignation were felt by the Royalist leaders, at the folly of the English ministry. But there seemed no way before them but submission to the Imperial decree. But Henry saw that the hour had come for meeting the issue between the King and the Colonies.

Patrick Henry addressing the Virginia Assembly with 5 resolutions Stamp Act

The Greatest Speech in American History (Give me Liberty or Give me Death)

He rose in his seat and offered his famous Five Resolutions, which in substance declared that Englishmen living in America had all the rights of Englishmen living in England, and that all attempts to impose taxes upon them without the consent of their own representatives, had “a manifest tendency to destroy British as well as American freedom.

These resolutions provoked an animated and exciting debate. There is a strong probability that Jefferson knew the intentions of Henry, for he was present on that ever memorable occasion in the House.

No provision was made in the Assembly chamber for spectators. There was no gallery from which they could look down upon the contestants. In the doorway between the lobby and the chamber Jefferson took his stand, intently watching Henry’s attitude and actions.

In a hesitating way, stammering in his utterances, he began reading his Resolutions. Then followed the opening sentences of the magnificent oration of this “Demosthenes of the woods,” as Byron termed him.

No promise did they give of what was to follow. Very soon the transformation came. Jefferson saw him draw himself to his full height and sweep with a conqueror’s gaze the entire audience before and about him.

No impediment now; no inarticulate utterances now. With a voice rich and full, and musical, he poured out his impassioned plea for the liberties of the people. Then soaring to one of his boldest flights, he cried out in electric tones:

Caesar had his Brutus, Charles the First his Cromwell, and George the Third ______.” The Speaker sprang to his feet, crying, “Treason! treason!” The whole assembly was in an uproar, shouting with the Speaker, “Treason! treason!” Not only the royalists, but others who were thoroughly alarmed by the orator’s audacious words, joined in the cry. But never for a moment did Henry flinch. Fixing his eye upon the Speaker, and throwing his arm forward from his dilating form, as though to hurl the words with the power of a thunderbolt, he added in a tone none but he himself could command,______ “May profit by their example.

Then, with a defiant look around the room, he said, “If this be treason, make the most of it.

Fifty-nine years afterwards Jefferson continued to speak of that great occasion with unabated enthusiasm. He narrated anew the stirring scenes when the shouts of “treason, treason,” echoed through the Hall.

In his record of the debate which followed the speech of Henry he described it as “most bloody.” The arguments against the resolutions, he said were swept away by the “torrents of sublime eloquence” from the lips of Patrick Henry. With breathless interest, Jefferson, standing in the doorway, watched the taking of the vote on the last resolution. It was upon this resolution that the battle had been waged the hottest. It was carried by a majority of a single vote. When the result was announced, Peyton Randolph, the King’s Attorney General, brushed by Jefferson, in going out of the House, exclaiming bitterly with an oath as he went, “I would have given five hundred guineas for a single vote.”

The next day, in the absence of the mighty orator, the timid Assembly expunged the fifth resolution and modified the others. The Governor, however, dissolved the House for daring to pass at all the resolutions. But he could not dissolve the spirit of Henry nor the magical effect of the resolutions which had been offered. By his intrepid action Henry took the leadership of the Assembly out of the hands which hitherto had controlled it.

The resolutions as originally passed were sent to Philadelphia. There they were printed, and from that center of energetic action were widely circulated throughout the Colonies. The heart of Samuel Adams and the Boston patriots were filled with an unspeakable joy as they read them. The drooping spirits of the people were revived and the doom of the Stamp Act was sealed.

In 1765 the British Parliament passed the Stamp Act, which placed a tax on newspapers, almanacs, pamphlets and broadsides, all kinds of legal documents, insurance policies, ship’s papers, licenses, dice and playing cards. This led to widespread protest in the American colonies, and to the slogan, “No taxation without representation!”

The Virginia legislature did not actually adopt the fifth and sixth resolves, which were seen as quite radical, but this document, including all six resolves, was published widely in newspapers across the colonies. Therefore, colonists were exposed to Henry’s radical ideas, and this document served as influential propaganda for the cause. Eight other colonies followed suit and had adopted similar resolves by the end of 1765.

The cry of “treason” in the Assembly of Virginia, although followed by the strong remonstrance of the burgesses, was a manifestation of the desire which then almost universally prevailed amongst the colonists to regard themselves as bound in allegiance to the British crown. It was a result, of that system of parliamentary corruption and of court influence which at that time entered so largely into the government of England

Virginia Resolves. On May 30, 1765, the House of Burgesses of Virginia came to the following resolutions:

Whereas the honorable House of Commons in England have late drawn into question how far the general assembly of this colony has power to enact laws for laying taxes and imposing duties payable to the pope of this his majesty’s most ancient colony — For settling and ascertaining the same to all future times, the House of Burgesses of this present general assembly have come to the several following resolutions:

Resolved, that the first adventurers and settlers of His Majesty’s colony and dominion of Virginia brought with them and transmitted to their posterity, and all other His Majesty’s subjects since inhabiting in this His Majesty’s said colony, all the liberties, privileges, franchises, and immunities that have at any time been held, enjoyed, and possessed by the people of Great Britain.

Resolved, that by two royal charters, granted by King James I, the colonists aforesaid are declared entitled to all liberties, privileges, and immunities of denizens and natural subjects to all intents and purposes as if they had been abiding and born within the Realm of England.

Resolved, that the taxation of the people by themselves, or by persons chosen by themselves to represent them, who can only know what taxes the people are able to bear, or the easiest method of raising them, and must themselves be affected by every tax laid on the people, is the only security against a burdensome taxation, and the distinguishing characteristic of British freedom, without which the ancient constitution cannot exist.

Resolved, that His Majesty’s liege people of this his most ancient and loyal colony have without interruption enjoyed the inestimable right of being governed by such laws, respecting their internal policy and taxation, as are derived from their own consent, with the approbation of their sovereign, or his substitute; and that the same has never been forfeited or yielded up, but has been constantly recognized by the kings and people of Great Britain.

The fifth item, following, was rescinded the next day. Henry, perhaps believing that the matter would stand, had departed. The loyalist members reformed on May 31st for the purpose of removing all five resolutions, but succeeded only in removing this one. The text of it was found with Patrick Henry’s will:

Resolved, therefor that the General Assembly of this Colony have the only and exclusive Right and Power to lay Taxes and Impositions upon the inhabitants of this Colony and that every Attempt to vest such Power in any person or persons whatsoever other than the General Assembly aforesaid has a manifest Tendency to destroy British as well as American Freedom.

The following resolves were not passed, though drawn up by the committee.They are inserted as a specimen of the first and early energies of the Old Dominion, as Virginia is often called.

Resolved, That his majesty’s liege people, the inhabitants of this colony, are not bound to yield obedience to any law or ordinance whatsoever designed to impose any taxation whatsoever upon them, other than the laws and ordinances of the general assembly aforesaid.

Resolved, That any person who shall by speaking or writing maintain that any person or persons other than the general assembly of this colony have any right or power to impose or lay any taxation whatsoever on the people here shall be deemed an enemy to this his majesty’s colony.

Version published widely in newspapers, with additional resolution. There were also some variations from publication to publication:

Resolved, That the first adventurers and settlers of this His Majesty’s Colony and Dominion of Virginia brought with them, and transmitted to their posterity, and all other of His Majesty’s subjects since inhabiting this His Majesty’s said Colony, all the liberties, privileges, franchises, and immunities, that have at any time been held, enjoyed, and possessed, by the people of Great Britain.

Resolved, That by two royal charters, granted by King James the First, the colonists aforesaid are declared entitled to all liberties, privileges, and immunities of denizens and natural subjects, to all intents and purposes, as if they had been abiding and born within the realm of England.

Resolved, That the taxation of the people by themselves, or by persons chosen by themselves to represent them, who can only know what taxes the people are able to bear, or the easiest method of raising them, and must themselves be affected by every tax laid on the people, is the only security against a burthensome taxation, and the distinguishing characteristick of British freedom, without which the ancient constitution cannot exist.

Resolved, That His Majesty’s liege people of this his most ancient and loyal Colony have without interruption enjoyed the inestimable right of being governed by such laws, respecting their internal polity and taxation, as are derived from their own consent, with the approbation of their sovereign, or his substitute; and that the same hath never been forfeited or yielded up, but hath been constantly recognized by the kings and people of Great Britain.

Resolved therefore, That the General Assembly of this Colony have the only and sole exclusive right and power to lay taxes and impositions upon the inhabitants of this Colony, and that every attempt to vest such power in any person or persons whatsoever other than the General Assembly aforesaid has a manifest tendency to destroy British as well as American freedom.

Resolved, That His Majesty’s liege people, the inhabitants of this Colony are not bound to yield obediance to any law or ordinance whatever, designed to impose any taxation whatsoever upon them other than the laws or ordinances of the General Assembly aforesaid.

Resolved, That any person who shall, by speaking or writing, assert or maintain that any person or persons other than the General Assembly of this Colony, have any right or power to impose or lay any taxation on the people here, shall be deemed an enemy to His Majesty’s Colony.

Preface To Resolutions of Virginia and Kentucky by James Madison and Thomas Jefferson

Jefferson and Madison

Jefferson and Madison

The administration of Mr. John Adams was a dark day for the republic. Then, alien and sedition acts were let loose upon us: the purity of the constitution itself was violated by the madness of party: and those rights which had been respectively reserved to the states and to the people, were exposed to the most fearful jeopardy by the usurpations of the federal government.

But, the friends of the constitution did not “despair of the republic.” Though the liberty of speech and of the press were invaded; though the power and patronage of the government were exerted to intimidate or seduce the people; the republicans did not abandon the cause of their country. Their resistance continued with the crisis: the form of it only was varied. While Mr. Jefferson remained in the senate of the United States, and Mr. Gallatin in the house of representatives, most of their most able and active friends, in some of the states, retired from the walks of the general [federal] government, and retreated to the state legislatures; in which great citadels of the public liberty, they proposed to re-assert the true principles of the government. The republicans succeeded; and the constitution was saved.

Among the most memorable productions of those times, were the resolutions and reports, which were adopted by the legislatures of Kentucky and Virginia. These were penned by Jefferson and Madison. To Mr. Madison is due, the honor of having drafted the Virginia resolutions of the 21st December, 1798; and that masterly vindication of them, which was adopted by the legislature of Virginia during the session of ’99-1800: a paper, which is familiarly known by the name of “Madison’s Report,” and which deserves to last as long as the constitution itself.

The resolutions of Kentucky, were submitted to the legislature of that state, by Mr. John Breckenridge, and adopted by them on the 10th November, 1798. They had the honor of being penned by the author of the declaration of American independence.


Jefferson and Madison

Both these esteemed productions are scarce, and out of print. They are frequently asked for. They are again wanting, to re-establish the land marks of the constitution; and to stay that flood of encroachment which threatens to sweep our country. The rights of the states and of the people, are again assailed in an alarming manner. Doctrines are preached in high places, which are directly at war with the principles of our government. The centripetal power is assuming a new and fearful energy. Under the authority of great names, great errors are maintained. Is it not time, then, for the friends of truth to rally together, and to re-assert her principles? Where can we find these principles more clearly stated, or the arguments in their defence more powerfully developed, than in the celebrated productions which the publisher of this pamphlet [post will] now lays before his readers? [The Kentucky and Virginia Resolutions] – Richmond ( Va.) February, 1826.


Great_Seal_of_the_United_States_(obverse).svgThe history of this Seal is a most interesting one and bears evidence of the jealousy with which the great minds that were the fathers of the Republic bent themselves to the study of the very smallest details of our national birth. Committee after committee was appointed upon the subject of this Seal alone, and report after report, during the passage of nearly six years, was laid aside as still unsatisfactory.

The care with which the reports of the several committees were scrutinized, and the promptness with which the crude and earlier ones were successively laid aside, shows, that while Heraldry may not have been the forte of these young republicans, they were still most ardent students of its inner spirit— that of loftiest symbolism; and were determined that their final action should embody only such a system of emblazonry as should be forever pregnant with all the more inspiring sentiments surrounding the birth of “The New Atlantis.”

As with the history of the Flag, so with that of the Great Seal, we find that the ideas eventually adopted were the result of growth, development, and of a most judicious exercise of careful selection. The growth of the former was without, among the People, and amid the smoke of battle; that of the latter, looking towards more peaceful times, was within, among the Fathers, and in the quiet halls of national deliberation. In both cases the issue was happy in the extreme.

Among the very earliest acts of the infant Republic was that of appointing a committee to devise a suitable “Great Seal,” by means of which to authenticate and lend sanction to its decrees. So important, indeed, appeared to be the immediate necessity of such an instrument to the founders of our nationality, that upon the very day of the Declaration of its Independence, July 4th, 1776, soon after the reading of the document, a committee of no less prominence than the following: Dr. Benjamin Franklin, Mr. John Adams, and Mr. Thomas Jefferson, was appointed to prepare a device for the Great Seal of the United States of America.

THE GREAT SEAL OF THE UNITED STATES as it appeared in Harper’s Magazine, July, 1856, Vol. XIII

IN the year 1830 I lived four months with a bachelor kinsman not far from Washington Square, in Philadelphia. His house was sandwiched between the residences of two highly intelligent octogenarians, and was the neutral ground where they met, four nights in each week, to discuss the news of the day, taste my kinsman’s good wine, help each other remember the stirring incidents of the old war for Freedom, and to fight those battles over again. I was then a fledgling of twenty summers, and had nothing to do but to sit and listen to the gray-beards, with ears, and eyes, and mouth wide open. I sat like a sponge, absorbing at all points; and during that four months’ sojourn I imbibed an enormous quantity of the spirit of seventy-six. It went immediately to the brain, where it produced a chronic monomania, which the doctors pronounce incurable.

Great_Seal_of_the_United_States_(reverse).svgUncle Billy, the senior by ninety days, had been a successful merchant long before the Fairmount Reservoir was built; and during much of the War for Independence he was a clerk with Robert Morris, the great financier of that old contest for right. The Squire had been all his life a miscellaneous man—a sort of Caleb Quotem. When the first Congress met in Philadelphia, he was a sub-editor of Bradford’s Pennsylvania Journal, and always boasted of having engraved with his pen-knife that ugly looking, disjointed snake, which figured at the head of the paper all that spring and summer, to the great annoyance of the King’s men. The Squire afterward became a factotum of Aitkin’s Pennsylvania Magazine, and frequently spoke of his amazement at the speed of Tom Paine’s pen, after he had swallowed his third glass of brandy, when writing his promised monthly contribution to that periodical, in the little back room of Aitkin’s establishment at the Pope’s Head, above the London Coffee-House, in Market Street. The Squire was also a sort of Ariel in the public bodies of that day, and his memory being as good as phonography, he was a reporter of sayings and doings, in high repute. He was a favorite with those old Congressmen, and he followed them in their two flights, first to Baltimore and then to York. Such were the Gamaliels of living history, at whose feet I nightly sat and listened.

One day my kinsman showed me a commission, signed by Charles Thomson, the Secretary of the Continental Congress, and bearing the broad, recumbent seal of the United States, precisely the same in device as the Government signet of to-day. My curiosity was excited, and I waited impatiently for Uncle Billy and the Squire. They were always as punctual as a creditor, and at precisely seven in the evening the oracles appeared. I handed the parchment to Uncle Billy, and asked him to give me a history of the seal.

“Here, Squire,” said Uncle Billy, “you know more of this than I. Tell the boy all about it.”

The Squire glanced at the parchment, brushed a gathering tear from his eye after looking at the solid signature of his old friend Thomson, and then commenced opening the sphinx, by asking Uncle Billy if he remembered the dreadful thunder-storm on the night of the third of July, 1776, and the cool, bracing wind from the north the next morning.

“Don’t I, Squire,” said Uncle Billy, shaking his head, and then lighting his pipe. “Morris sent me to Chester that night on some public business, and I thought I would freeze before I reached Philadelphia the next morning at daylight. Tom Jefferson came into the counting room that morning, when on his way to the State House, and told Morris that his thermometer indicated only sixty-eight degrees— eight degrees below summer-heat. I remember, too, that an electric rod, which Dr. Franklin had placed on Parson Duche’s house, a little out of town, was bent by lightning during the storm. Pity it hadn’t bent the frightened Tory back to a good Whig, as he seemed to be, when he preached that patriotic sermon in Christ Church, just a year before, to the First Battalion of Philadelphia.”

“Well, Billy,” said the Squire, “that, yon know, was the day, with the wind from the north, when Congress coolly declared the colonies free and independent States. I well remember it was about two o’clock in the afternoon when the final vote was taken. I was in a corner of the room listening, and when the deep silence of the moment was broken by Dr. Franklin, saying, ‘Well, gentlemen, we must now all hang together, or we must hang separately,’ I concluded they would all go home to dinner, and not return again. But they did return. Those old fellows didn’t take the people’s money without earning it; and they remained until almost sunset. After disposing of a dozen other items of public business, they appointed a committee of three to prepare a great seal for the new empire. I thought that about the coolest proceeding of the day. The baby republic was only four hours old, and nobody felt certain it would live, and yet, with Britannia’s doubled fist under their noses, they impudently proposed to give the bantling a coat of arms as heavy in its weight of sovereignty as Saul’s mail was in brass.”

“Ay, Squire, those men saw a great way beyond their noses, even with Britannia’s fist there. They swore the baby should live, and. you know, they generally practiced what they preached. But who were the committee?”

Du Simitiere Design

Du Simitiere Design*(fn1)

“Let me see,” mused the Squire, as he also lighted his pipe. “Oh! I remember. Dr. Franklin, whom we all thought knew everything, and could do everything, was made the chairman. John Adams, the plump Bostonian. in his claret-colored coat, whose bald head made him appear like a man of sixty, rather than a man of forty, as he was, was next named; and then that tall bean-stalk, Jefferson, the youngest of the three, who was only two-and-thirty years of age. But he had a world of book-wisdom under that wiry red hair of his.”Yes, yes,” said Uncle Billy, “I well remember, now, how Jefferson talked with Morris about it a day or two afterward; and perhaps a month or six weeks later, he gave Morris his plan for a seal on a bit of paper. He said it was not all original, but contained also the ideas of Adams and Franklin, the same as the Declaration of Independence did. You know how Jefferson could always use the ideas of other people as well as his own, and make them appear as fresh and bright as if just coined at the mint of his own brain. I remember seeing some rough devices for the seal, made with a pen. Do you remember who drew them?”

“Yes; a little West India Frenchman, named Du Simitiere, who used to cut profiles in black paper, paint miniatures and other pictures in water-colors, and, I was told, commenced collecting materials for a history of the Revolution by saving cuttings from newspapers of the time. In fact, I think I have seen four or five volumes that he prepared, in this way, in our City Library. Well, one hot afternoon, Franklin, Adams, and Du Simitiere, came into the little back-room of Atkin’s establishment, and, using a little table on which I had been writing a notice of the arrival of the British fleet at Sandy Hook, for Bradford’s paper, they there discussed the subject. The Frenchman displayed his sketches. In one of them he showed the arms of the several nations from whence America had been peopled, as English, Scotch, Irish, Dutch, German, etc., each in a shield. On one side of them he placed Liberty, with her cap; on the other a rifleman in his uniform, with his rifle in one hand and a tomahawk in the other, that dress and weapons being peculiar to America. Dr. Franklin proposed for the device, Moses lifting his wand and dividing the Red Sea, and Pharoah and his chariot overwhelmed with the waters. For a motto, the words of Cromwell, I believe: ‘Rebellion To Tyrants Is Obedience To God.’ Adams proposed the Choice of Hercules, as engraved by Gribelin in some editions of Lord Shaftesbury’s works: the hero resting on a club, Virtue pointing to her rugged mountain on one hand, and persuading him to ascend: and Sloth, glancing at her flowery paths of pleasure, wantonly reclining on the ground, displaying the charms both of her eloquence and person, to sednce him into vice. While they were discussing the matter, Jefferson came in, and he proposed, as a device, the Children of Israel in the Wilderness, led by a cloud by day and a pillar of fire by night; and, on the other side, Hengist and Horsa, the Saxon chiefs, from whom we claim the honor of being descended, and whose political principles and form of goverument we have assumed. Franklin and Adams then, as they did when they had discussed the material for the Declaration of Independence, requested Jefferson to combine their ideas in a compact description of a proper device for a great seal. He did so, and that paper, in his handwriting, is now in the office of the Secretary of State, in Washington City.”

“Do you remember its contents?” I eagerly inquired.

“I think I do,” responded the Squire, taking a sip of wine. “He proposed, as the arms, a shield with six quarterings, parti one, coupi two, in heraldic phrase. The first gold, and an enameled rose, red and white, for England; the second white, with a thistle, in its proper colors, for Scotland; the third green, with a harp of gold, for Ireland; the fourth blue, with a golden lily-flower, for France; the fifth gold, with the imperial black eagle, for Germany; and the sixth gold, with the Belgic crowned red lion, for Holland. These denoted the countries from which America had been peopled. He proposed to place the shield within a red border, on which there should be thirteen white escutcheons, linked together by a gold chain, each bearing appropriate initials, in black, of the thirteen confederated States. He also proposed, as supporters, the Goddess of Liberty on the right side, in a corslet of armor, in allusion to the then state of war, and holding the spear and cap in her right hand, while with her left she supported the shield of the States. On the left hand the Goddess of Justice, leaning on a sword in her right hand, and in her left a balance. The crest, the eye of Providence in a radiant triangle, whose glory should extend over the shield, and beyond the figures. Motto: E Pluribis Unum—’Many in one.’ Around the whole, Seal Of The United States Of America. MDCCLXXVL For the reverse, he proposed the following device: Pharaoh, sitting in an open chariot, a crown on his head and a sword in his hand, passing through the divided waters of the Red Sea in pursuit of the Israelites. Rays from a pillar of fire in a cloud, expressive of the Divine presence and command, beaming on Moses, who stands on the shore, and, extending his hand over the sea, causes it to overwhelm Pharaoh. Motto: Rebellion To Tyrants Is Obedience To God. This motto Mr. Jefferson had inscribed on his own private seal.”

Jefferson Proposed Design

Jefferson Proposed Design

“That would have made a noble seal,” I said. “Why didn’t they adopt it?”

“I don’t know,” replied the Squire. “The fact is, we all had something more important to think of, soon after that, than making seals for a government that seemed, for a long time, to have no more stable foundation than paper— a paper declaration of existence, and a paper currency. The committee made some sort of a report on the 10th of August, but Thomson did not think it of sufficient importance to put it on record; and nothing more was done, I believe, until the spring of 1779. Jefferson, you know, soon went to Virginia; Franklin was sent to Europe to help Silas Deane, or to watch him, I don’t know which; and our army, under Washington, was sadly beaten and battered on Long Island, and finally driven across the Jerseys, to the frozen banks of the Delaware.”

“And Morris sent me there with a heap of hard money for them, I remember, just before Christmas,” added Uncle Billy.

“And what was done in the spring of 1779?” I inquired.

“Well—let me see,” mused the Squire. “I had had a hard time of it in the mean while, with the rest of the Whigs. When Congress thought the British, who were chasing Washington across the Jersey’s would come on to Philadelphia, they told the Chief to do just what he pleased, and then they pulled up the stakes of their tents and fled to Baltimore. I went there too, and wrote many paragraphs for Goddard’s paper. The next year, you remember, our army got nicely thrashed at Brandywine, and then the British did go to Philadelphia in earnest. Congress hurried off to York, in the interior of the State, where I too found safety and bread and butter; but our old friend, Aitkin, was locked up in the Walnut Street prison, and badly treated for a while. Finally, when the British thought a French fleet was coming to the Delaware, they ran away from Philadelphia. Congress came back, and matters going a little smoother, they began to think of independent sovereignty again. One morning in March—I think the 24th—the wet snow ankle-deep, I went to the State House for news. In the course of the forenoon James Lovell, who had been a schoolmaster in Boston, and a prisoner for conscience’ sake at Halifax, but was now an active member of the Committee on Foreign Correspondence, moved the appointment of a committee to prepare a device for a Great Seal. John Jay, the fiery young Huguenot from New York, was in the Presidential chair, and he appointed Mr. Lovell, with Scott of Virginia, and Houstoun of Georgia, such committee. They reported on the 10th of May following.

Design submitted in 1779* (fn2)

Design submitted in 1779* (fn2)

They proposed to make a seal four inches in diameter. On one side the arms of the United States, composed of a shield with thirteen diagonal stripes, alternate red and white. For supporters, a warrior holding a sword, on one side; and on the other a figure representing Peace, bearing an olive branch. The crest, a radiant constellation of thirteen stars. Motto: Bello Vel Pace; and the legend, Seal Of The United States. On the reverse, the figure of Liberty, seated in a chair, holding the staff and cap. Motto: Semper: and underneath, MDCCLXXVI. This report was recommitted: and just a year afterward, to a day, another report was presented. This report was almost exactly like the former, and on comparison of the drawings with pen and ink, submitted each time. I found they differed only in a single figure, and in the mottoes. The sketches, I believe, were made by Du Simitiere, who then lived with an aged widow lady a few doors from the house of Peter S. Duponceau.

But Congress seemed hard to please,” continued the Squire. “They didn’t accept the last report, and there the matter rested, as my friend Thomson told me, until April, 1782, when Henry Middleton, Elias Boudinot, and Edward Rutledge were appointed a committee to prepare a great seal. They reported, on the 9th of May following, substantially the same as the committees of 1779 and 1780 had done. Congress, despairing of getting any thing satisfactory from a committee, referred the whole matter to Charles Thomson, its secretary, on the 13th of June.”

“But somebody told me that our old friend, Will Barton, Dr. Ben’s younger brother, made the device for our great seal. Was it not he, instead of Du Simitiere, who made the drawing for Lovell’s Committee?”

“No, no, Billy,” said the Squire, a little impatiently, “he had nothing to do with it until the whole matter was placed in Thomson’s hands. At that time I was very intimate with Thomson, although he was twenty years older than I. You remember, Billy, his thin face and figure, furrowed countenance, hollow, sparkling eyes, and thin white hair at the close of the war, though he was then only fifty-three years old. He appeared to be sixty-three, at least. Well, as I was saying, Thomson and I were intimate, and I well remember being at his house at about the middle of June, when he told me of the reference of the whole matter to him. He then showed me a large drawing made the day before by Barton, who, you know, was a line scholar and a fair artist. He also read a description of a device, written by Barton, but differing somewhat from his drawing. Dr. Arthur Lee and Elias Boudinot, who had accompanied Thomson when he called on Barton for a device, came in the same evening, and we discussed the subject pretty thoroughly. They did not fancy Barton’s design for the arms, because it was too elaborate; but they liked his small sketch for the reverse of the seal, which was an unfinished pyramid with the eye of Providence, in a radiant triangle, over it. Finally, Thomson showed us an exceedingly simple and appropriate device, which Adams had sent to him from England, and approved of. Hoping something as good would be made by his own countrymen, he had withheld it, because it had been suggested to Mr. Adams by a proud member of the British aristocracy. All agreed that the device from England was the best yet offered. Thomson reported it to Congress on the 20th of June, and it was adopted. So you see that we are indebted for our national arms to a titled aristocrat of the country with which we were then at war!”

Design submitted in 1780

Design submitted in 1780

“Is it possible!” we exclaimed. “Do you know the name of that titled Englishman?”

“One thing at a time,” said the Squire, filling his pipe. “Let me tell you first about Barton’s device. He proposed an escutcheon with a blue border, spangled with thirteen stars, and divided in the centre, perpendicularly, by a gold bar. On each side of this division, within the blue border, thirteen bars or stripes, alternate red and white, like the American flag adopted on the 14th of June, 1777. Over the gold bar an eye surrounded with a glory, and in the gold bar a Doric column, resting on the base of the escutcheon, having a displayed eagle on its summit. The crest, a helmet of burnished gold, damasked, grated with six bars, and surmounted by a red cap of dignity, such as dukes wear, with black lining, and a cock armed with gaffs. For supporters: on one side the Genius of America—represented by a maiden with loose auburn tresses, having on her head a radiant crown of gold, encircled with a sky-blue fillet, spangled with silver stars, and clothed in a long, loose, white garment, bordered with green. From the right shoulder to the left side, a blue scarf with stars, the cinctures thereof the same as in the border. Around her waist a purple girdle fringed with gold, and the word Virtue embroidered in white. She rested her interior hand on the escutcheon, and in the other held the standard of the United States, on the top of which was perched a white dove. The supporter on the other side was a man in complete armor; his sword-belt blue, fringed with gold; his helmet encircled with a wreath of laurels, and crested with one white and two blue plumes. With bis left hand he supported the escutcheon, and in the other he held a lance with a bloody point. Upon a green banner, unfurled, was a harp of gold with strings of silver, a brilliant star, two lily-flowers, and below two crossed swords. The two figures stood upon a scroll, on which was the motto Deo Favente, which alluded to the eye in the arms, meant for the eye of Providence. On the crest, in a scroll, was this motto: Virtus Sola Invicta.”

“What a complicated affair,” I remarked. “Can you explain the meaning of all the parts of that elaborate design?” I inquired.

“Not half of ’em,” said Uncle Billy, with a chuckle. “You see, Squire, the boy has put you on a sand-bar by that question. I thought you sailed a little too careless, with the wind in your eye, not to fetch up all standing pretty soon.”

This challenge aroused the pride of the Squire, and he summoned all the powers of his wonderful memory to his aid.

“Can’t explain ’em, eh,” he said, knocking the ashes from his pipe, laying it upon the table, and bringing the points of his forefingers together. “We’ll see.”

Barton's Design

Barton’s Design

“First of all, the Arms. The thirteen bars or stripes represented the Thirteen States, and the stars on a blue field denoted a new constellation, in allusion to the new empire formed in the world by the confederation of the States. This, you know, was the device of our flag, and did not thus originate with Barton. The stars disposed in a circle, the emblem of eternity, denoted the perpetuity of the confederation. The spread eagle, you know, is the symbol of supreme power and authority, and represented Congress. The Doric pillar, the most perfect of the orders, represented Fidelity and Constancy, its parts taken together forming a beautiful composition of strength, congruity, and usefulness, the attributes of a well-planned government. The eagle being placed on the summit of the column, was emblematical of the sovereignty of the United States. The eye, of coarse, is the All-Seeing one of Providence. The helmet represents sovereignty, and the cap is the token of freedom, as used by the old Romans. The cock represents vigilance and fortitude. The fillet, the glittering stars, and the American flag, denote the genius of the American Confederacy. The white dress, trimmed with green, denotes youth and purity; the purple girdle and radiant crown symbolize sovereignty, and the word Virtue implies that that should be the chief ornament of the Republic. The dove on the standard denotes the mildness and justice of the government; the white plume was a compliment to the French Allies; the green banner, with a golden harp, symbolized youth and vigor, hnrmony and concert. The brilliant star represented America as chief in the contest, and the lily-flower—the fleur de lis—was expressive of gratitude to France for its support. The crossed swords denoted the state of war, and the armed man with his flag, related totally to America and the time of the Revolution. There, Billy,” said the Squire, rubbing his hands triumphantly, “isn’t that as good an explanation as Will Barton himself could have given? On a sand-bar, eh!”

“Why, my old friend,” said Uncle Billy, with a pleasant smile, “I know you could tell all about men, and circumstances, and such like, but when I found your tongue reeling off such a yarn about coats of arms which so few people in this country know any thing about, or are fools enough to care anything about, I thought you were getting into dangerous waters with your craft. But your good old pilot, memory, never failed you yet, and I don’t believe it ever will as long as there is a plank of the old hulk left. Now wind up your skein, Squire, by telling us about that English aristocrat who invented our national arms, and then we’ll adjourn, for it’s bed-time for youngsters like us.”

The Great Seal of the United States

The Great Seal of the United States

“Well, you know John Adams was sent to England, in the fall of 1779, to negotiate for peace. His fame and his official position gave him great prominence, and he became acquainted with many men of all respectable classes. Among others who took quite a fancy for Adams was Sir John Prestwich, a baronet of the West of England, who was a friend of the Americans in that long quarrel, and was an accomplished antiquarian. In conversation with him one day on the bright prospects of the Americans, Adams mentioned the fact that his countrymen had not yet decided upon a national coat of arms. Sir John suggested that an escutcheon bearing thirteen perpendicular stripes, white and red, like the American flag, with the chief blue, and spangled with thirteen stars, would make a fine device. And to give it more consequence he proposed to place it on the breast of a displayed American eagle without supporters, as emblematic of self-reliance. That simple and significant device pleased Adams, and he communicated it to his friends in Congress. Thomson liked it, too, but, for reasons I have named, he withheld it until the last. Congress was pleased with it, and in the Journal of the 20th of June, 1782, you may find the great seal thus described, if my memory does not deceive me:

“Arms.—Paleways of thirteen pieces, argent and gules; a chief azure; the escutcheon on the breast of the American eagle displayed proper, holding in his dexter talon an olive branch, and in his sinister a bundle of thirteen arrows, all proper, and in his beak a scroll, inscribed with this motto: E Pluribus Unum.”

“Hold on a minute, Squire!” interrupted Uncle Billy; “you’re talking above my comprehension about paleways, and argent, and gules, and dexter, and sinister talons. What does all that mean?”

“Why, Billy, I thought you knew something of heraldry. Paleways means perpendicular bars, like a picket-fence; argent and gules mean white and red; and dexter and sinister mean right and left. The motto is, Many In One—Many States in one Confederation.”

“Yes, I know E Pluribus Unum well enough; but the rest was Greek, or Latin, or Indian to me. But go on.”

“‘ For The Crest.-—Over the head of the eagle, which appears above the escutcheon, a glory Or (that is, golden) breaking through a cloud, proper, and surrounding thirteen stars, forming a constellation, argent (white stars) on an azure (blue) field.’

“‘ Reverse.—A pyramid unfinished. In the zenith an eye in a triangle, surrounded with a glory, proper. Over the eye these words, Annuit Coeptis (God has favored the undertaking). On the base of the pyramid the numerical letters MDCCLXXVI; and underneath the following motto: Novus Ordo Seclorum—A New Series of Ages, denoting that a new order of things had commenced in this Western World. Such was the seal then adopted, and such yet remains the arms of the United States. Congress then ordered a seal half the size of the great one, to impress wax and paper, as you now see it upon this commission signed by my old and trusty friend, Charles Thomson. They also ordered a smaller seal for the use of the President of the Congress.

The Presidents Seal

The Presidents Seal(fn3)

It was a small oval about an inch in length, the centre covered with clouds surrounding a space of open sky, on which were seen thirteen stars. Over these the motto, E Pluribus Unum. The seal of the President of the United States now is round, yon know, with an eagle upon it.”

Uncle Billy now arose to depart, when the Squire said, “A few minutes more, my old friend, and I will go too. Do you remember that curious article on Merlin’s prophecy, which appeared in one of our Philadelphia papers while the Federal Convention that formed the Constitution in 1787 was in session?”

“I do not.”

“I do; for I extracted it from an old volume, published in London in the year 1530,(fn4) and appending to it my own interpretation, published it over the signature of ‘T,’ the middle letter of my name, you know. That prophecy is said to have been uttered more than a. thousand years ago; and it seemed to me to refer directly to America, its settlement, our Revolution, and our flag and coat of arms. Shall I repeat it, with my interpretation?”

“By all means,” we both exclaimed. Uncle Billy filled his pipe again, and the Squire began:

‘When the Savage is meek and mild
The frantic Mother shall stab her Child.’

The settlement of America by a civilized nation is very clearly alluded to in the first line. The frantic mother is Britain. America still feels the wounds she has received from her.

‘When the Cock shall woo the Dove,
The Mother the Child shall cease to love.’

The Cock is France; the Dove is America—Columbia, from Columbus; Colombo, a pigeon. This union is the epocha when America shall cease to love Britain; for so I understand the prophecy, in which there is manifestly an equivoque, which is one of the most striking characteristics of the ancient oracles.

‘When men. like moles, work under ground,
The Lion a Virgin true shall wound.’

In many parts of Europe there are subterranean works carried on by persons who never see the sun. But perhaps tho solution may more particularly be referred to the siege of York, in Virginia, where the approaches were carried on by working in the earth. In the second line there is another equivoque. We are told by Mr. Addison, in his ‘Spectator,’ that a lion will not hurt a true maid. This, at first view, seems to be contradicted by the prophecy; but, on examination, it will be found that, at the epocha referred to, the Virgin, Columbia (or perhaps Virginia, by which name all North America was called in the days of Queen Elizabeth), shall wound the Lion, that is, Britain, which shows the precise time when the oracle should be accomplished.

‘When the Dove and Cock, the Lion shall fight.
The Lion shall crouch beneath their might’

This clearly alludes to the successes of the united forces of America and France against those of Britain.

‘When the Cock shall guard the Eagle’s nest.
The stars shall rise all in the West.’

For the solution of this oracle, as well as all the rest, we are indebted to the engraving of the Arms of the United States, in the Columbian Magazine, for September, 1786. America is clearly designated by the eagle’s nest, as it is the only part of the globe where the bald eagle (the arms of the United States) is to be found. Thus this hitherto inexplicable prophecy, may now be easily understood as meaning that when the Cock, that is, France, shall protect America (as she did during the late war), the stars, that is, the standard of American empire, shall rise in this western hemisphere.

‘When ships above the clouds shall sail.
The Lion’s strength shall surely fail.’

It is very remarkable that the first discovery of the amazing properties of inflammable air, by means of which men have been able to explore a region, till then impervious to them, happened in the same year when Britain’s strength was so reduced as to oblige her to acknowledge the independence of America. The boats in which the adventurous aeronauts traversed the upper regions, are the ships here referred to.

“Thus far the prophecy seems to have been already fully and literally accomplished. It is to be hoped that the accomplishment of those which remain is not far remote.

‘When Neptune’s back with stripes is red.
The sickly Lion shall hide his head.’

I understand this to mean that when the sea (Neptune’s back) is red with the American stripes the naval power of Britain shall decline. A proper exertion in the art of ship-building would soon produce this effect, and whenever Congress is vested with the power of regulating the commerce of America, we may hope to see the full accomplishment of this prediction,

‘When seven and six shall make but one.
The Lion’s might shall be undone.’

This oracle clearly alludes to an epocha not far removed, as we may hope; for when the thirteen States shall, under the auspices of the present Federal Convention, have strengthened and cemented their union, by a proper revisal of the Articles of Confederation, so as to be really One Nation, Britain will no longer be able to maintain that rank and consequence among the nations of the earth which she hath hitherto done.

“So I interpreted the oracles in March, 1787. How well the last two have been since verified, you can judge. The States declared free in 1776 (seven and six) were made really one in 1789, and they are yet one, though now numbering twenty-four independent republics. Though the brave old Jackson is just now threatening the Cock with the sharp talons of the Eagle, I think they won’t fight yet a while, just to please the old Lion. And now, Billy, goodnight.” And so I parted with the octogenarians, for the time.

(fn1) All of the illustrations in this article are correct copies of rude sketches now In the archives of the State Department at Washington City, except the representation of Unseal proposed by Jefferson. This was drawn by the writer of this article, from tho description of Mr. Jefferson, in his own handwriting, now among other records of the proceedings of the several committees, in the State Department. This is the exact size of all of the originals. The remainder are reduced to half the size of the originals, and, like this, present fax-similes of the rude style of drawings.

(fn2) The original design was torn, and pasted on another piece of paper, as here represented, and presenting some blots, erasures, and a line drawn with a pen across one part. The next one also shows some hints made with a pen probably while the committee were in consultation.

(fn3) Copied from an impression made in 1784, on a letter written by Thomas Mifflin, then President of the Continental Congress.

(fn4) See Swift’s Works, vol iii, p. 214 Edition 1766 the “Sibylline Oracle” from the celebrated Welsh Astrologer Merlin’s Prophecies as uttered in Wales in the Eight century.
Walter Scott, speaking of Merlin, or the Savage, as he was called, says, “The particular spot in which he is buried is still shown, and appears, from the following quotation, taken from a description of Tweeddale, 1715, to have partaken of his prophetic qualities:—

‘When Tweed and Pausayl meet
At Merlin’s grave,
Scotland and England shall one
Monarch have.’

For the same day that our King James the Sixth was crowned king of England, the river Tweed, by an extraordinary flood, so far overflowed its banks that it met and joined with the Pausayl at the said grave, which was never before observed to fall out.”

The precise spot pointed out to travelers is situated near Drumelzier, a village upon the Tweed.

See also my series on the Rights of American Citizens
RIGHTS OF AMERICAN CITIZENS: General Rights; Division One
RIGHTS OF AMERICAN CITIZENS: General Rights; Division Two
RIGHTS OF AMERICAN CITIZENS: General Rights; The Social Compact
RIGHTS OF AMERICAN CITIZENS: The Powers delegated to the General Government in the Federal Constitution
RIGHTS OF AMERICAN CITIZENS: Powers delegated to the State Governments
RIGHTS OF AMERICAN CITIZENS: The Independence of the States
RIGHTS OF AMERICAN CITIZENS: The rights reserved to the people of the United States
RIGHTS OF AMERICAN CITIZENS: Of the right of suffrage and of elections
RIGHTS OF AMERICAN CITIZENS: The Liberty of Speech and of the Press
RIGHTS OF AMERICAN CITIZENS: The Power of Courts to punish for Contempts
RIGHTS OF AMERICAN CITIZENS: The Law of Libel in relation to Public Officers
RIGHTS OF AMERICAN CITIZENS: The mode of obtaining redress for infringement of civil or political rights

The Importance of Free Speech and The Free Press in America


When contemplating the liberties, freedoms and protections given by God and enumerated by the Constitution and Bill of Rights: Remember! The Free Exercise of Religion was the first to be mentioned by the Framers! The Freedom of the Press was meant to insure against the abuse of the government and those in power of all the other rights of man.

Remember also! When one right, liberty, or freedom is under attack, they are all under attack, when one is in jeopardy, they are all in jeopardy! The Second Amendment is meant to guarantee the First Amendment! 

The Importance of Free Speech and The Free Press in America


One of the most egregious breaches of the U.S. Constitution in history became federal law when Congress passes the Sedition Act, endangering liberty in the fragile new nation. While the United States engaged in naval hostilities with Revolutionary France, known as the Quasi-War, Alexander Hamilton and congressional Federalists took advantage of the public’s wartime fears and drafted and passed the Alien and Sedition Acts, without first consulting President John Adams.

President Adams never took advantage of his new found ability to deny rights to immigrants. However, the fourth act, the Sedition Act, was put into practice and became a black mark on the nation’s reputation. In direct violation of the Constitution’s guarantee of freedom of speech, the Sedition Act permitted the prosecution of individuals who voiced or printed what the government deemed to be malicious remarks about the president or government of the United States. Fourteen Republicans, mainly journalists, were prosecuted, and some imprisoned, under the act.

In opposition to the Alien and Sedition Acts, Thomas Jefferson and James Madison drafted the Virginia and Kentucky Resolves, declaring the acts to be a violation of the First and Tenth Amendments. President Adams, appalled at where Hamilton and the congressional Federalists were leading the country under the guise of wartime crisis, tried to end the undeclared war with France to undercut their efforts. He threatened to resign from the presidency and leave the Federalists with Republican Vice President Thomas Jefferson if they did not heed his call for peace. Adams succeeded in quashing Hamilton and the Federalists’ schemes, but ended any hope of his own re-election in the process.

The first of the laws was the Naturalization Act, passed by Congress on June 18. This act required that aliens be residents for 14 years instead of 5 years before they became eligible for U.S. citizenship.

Congress then passed the Alien Act on June 25, authorizing the President to deport aliens “dangerous to the peace and safety of the United States” during peacetime.

The third law, the Alien Enemies Act, was enacted by Congress on July 6. This act allowed the wartime arrest, imprisonment and deportation of any alien subject to an enemy power.

The last of the laws, the Sedition Act, passed on July 14 declared that any treasonable activity, including the publication of “any false, scandalous and malicious writing,” was a high misdemeanor, punishable by fine and imprisonment. By virtue of this legislation twenty-five men, most of them editors of Republican newspapers, were arrested and their newspapers forced to shut down.

One of the men arrested was Benjamin Franklin’s grandson, Benjamin Franklin Bache, editor of the Republican Aurora and General Advertiser. Charged with libeling President Adams, Bache’s arrest erupted in a public outcry against all of the Alien and Sedition Acts.

Many Americans questioned the constitutionality of these laws. Indeed, public opposition to the Alien and Sedition Acts was so great that they were in part responsible for the election of Thomas Jefferson, a Republican, to the presidency in 1800. Once in office, Jefferson pardoned all those convicted under the Sedition Act, while Congress restored all fines paid with interest. “

(See Text of Act(s) below)

Bill of RightsThe Argument against Unlimited Power in the Hands of the Federal Government!

One of the best arguments against these acts came from The Honorable Josephus Daniels in response to members George K. Taylor and Magill.

Daniels stated that the acts enumerated in the first section of the sedition law, as offences to be punished with heavy fines and long imprisonment, were “to combine or conspire together with intent to oppose any measure, or to impede the operation of any law of the United States;” or to intimidate any officer under the government of the same, from undertaking, performing, or executing his trust or duty; or to counsel, advise, or attempt to procure any insurrection, riot, unlawful assembly, or combination, whether such counsel or advice had effect or not. The offences enumerated in the second section of said law, he said, were, “to write, print, utter, or publish, or to cause the same to be done, or to aid in writing, printing, uttering, or publishing, any false writings against the government, the president, or either house of the congress of the United States, with intent to defame the government, either house of congress, or the president, or to bring them, or either of them, into disrepute; or to excite against them, or either of them, the hatred of the people; or to excite any unlawful combination, for opposing any law, or act of the president of the United States, or to defeat any such law or act.” These were the provisions of the act. The provisions of the constitution were, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” Third article of amendments to the constitution. He requested gentlemen to read the one and the other; to compare them, and reconcile them if possible. He was one of those who believed, that the first clause of the law would in its operation, effectually destroy the liberty of speech; and the second clause did most completely annihilate the freedom of the press. “To combine, conspire, counsel and advise together,” was a natural right of self-defense, belonging to the people; it could only be exercised by the use of speech; it was a right of self-defense [2nd Amendment force] against the tyranny and oppression of government; it ought to be exercised with great caution; and -never, but upon occasions of extreme necessity. Of this necessity, the people are the only judges. For if government could control this right; if government were the judge, when the necessity of exercising this right has arrived, the right never will be used; for government never will judge that the people ought to oppose its measures, however unjust, however tyrannical, and despotically oppressive. This right, although subject to abuse, like many other invaluable rights, was nevertheless essential to, and inseparable from, the liberties of the people. The warmest friend of any government would not contend that it was infallible. The best of governments may possibly change into tyranny and despotism. Measures may be adopted violating the constitution, and prostrating the rights and principles of the people. He hoped never to see the time; but, if it should so happen, no man would deny but that such measures ought to be opposed. But, he would ask, how they could be effectually opposed, without the people should “combine, conspire, counsel and advise” together? One man could do nothing. This right of adopting the only efficient plan of opposition to unconstitutional, oppressive and tyrannical measures, whenever they should occur, he hoped never would be given up. This right had been well exercised on a former occasion against England; and it would probably be well used again, if our liberties were sufficiently endangered, to call forth its exertion. But for the spirited and energetic exercise of this right; but for the “combining, conspiring, counseling and advising” together of the American people, these United States, now independent and free, would have remained under the tyrannical and despotic domination of the British king. It had been said, that this doctrine leads to anarchy and confusion; but, said Mr. Daniel, this doctrine gave birth and success to our revolution; secured our present liberty, and the privileges consequent thereupon. The contrary doctrine, said Mr. Daniel, leads to passive obedience and non-resistance, to tyranny and oppression, more certain, and more dangerous. If a measure was unpopular, and should give discontent, it would be discussed: if it should thereupon be found to be tolerable, it would be acquiesced in. If, on the contrary, measures should be adopted of such dangerous and destructive tendency, that they ought to be opposed; he would ask, how this could be done, but by the means which are forbidden in the first section of the law in question? These were the only means by which liberty, once trampled down by tyrants and despots, could be reinstated: and if the general government continued its rapid progress of violating the constitution, and infringing the liberties of the people, the time he feared was hastening on, when the people Would find it necessary again, to exercise this natural right of defense.

Mr. Daniel said, he would now turn his attention to that part of the law which affects the freedom of the press, in which the constitution was most palpably, and most dangerously infringed. On this subject, he said, the gentleman from Frederick had contended, that the constitution was not violated; that the common law was a part of the constitution; and that the offences enumerated in the act, were always punishable at common law. If this be the fact, said Mr. Daniel, the law in question is nugatory; and the clause of the constitution on this subject, which had been read, was of no effect, By the gentleman’s common law, which he had read, offences against the king and his government, were precisely such as were enumerated if offences in this law, against the president and government of the United States; substituting the word “president,” in the latter case, for the word “king,” in the former. These offences might be “by speaking, or writing against them; or wishing him (the king in England, and the president in America,) ill, giving out scandalous stories concerning them, (the king and his government in England, and the president and his government in America,) or doing anything, that may tend to lessen him (the king, or president, as the case may be) in the esteem of his subjects; weaken the government, or raise jealousies among the people.” JBlackstone’s Commentaries, page 123. When our “sedition law” was so like the law of England, he did not wonder that the gentleman had supposed that the law of England was in force here; one being the copy of the other, with the necessary change of names, and some other trivial circumstances; nor did he wonder that the gentleman should say, in conformity to that authority, that “the liberty of the press, properly understood, is by no means infringed or violated” by such regulations; “but consists in laying no previous restraints upon publications;” and is otherwise “licentiousness.” Blackstone, pa. 151, that a printer may publish what he pleases, but must answer the consequence, if a certain set of men shall adjudge his writings to contain “dangerous and licentious sentiments.” If this be true, he said, he would be glad to be informed, for what purpose was it declared by the constitution, that “the freedom of the press should not be restrained;” and how we were more free in the United States than the people of any other nation whatsoever? The most oppressed of Europe; the slaves and subjects of the most despotic power on the earth, he said, had the right to speak, write and print, whatever they pleased, but were liable to be punished afterwards, if they spoke, wrote or printed, anything that was offensive to the government: that there was very little difference as to the liberty of the press, whether the restraints imposed, were “previous” or subsequent to publications. If the press was subjected to a political licenser, the discretion of the printer would be taken away, and with it his responsibility; and nothing would be printed, but what was agreeable to the political opinions of a certain set of men; whereas subsequent restraints have the same operation, by saying, if you do “write, print, utter or publish,” anything contrary to the political opinions, reputation or principles of certain men, you shall be fined and imprisoned. In vain, he said, were we told that the accused may prove the truth of his writings or printing, and that we are only forbidden to write or print false facts. The truth was, that it was not the facts, but the deductions and conclusions drawn from certain facts, which would constitute the offence. If a man was to write and publish that the congress of the United States had passed the “alien and sedition acts,” that the provisions of the said acts were in these words, reciting the laws as they are, that the constitution was in these words, reciting the provisions of the constitution truly; and conclude, that the said acts violated the constitution; that the congress and the president, in enacting the same, had assumed powers not granted to them, and had encroached upon the liberties of the people, who ought to take measures “to defeat” these laws, and this “act of the president.” Here the facts stated, that the laws had been passed, and that the constitution was in terms stated, could be proved, and would not constitute the offence, but the inference from these facts, that the congress, in enacting the said laws, had violated the constitution, assumed powers not delegated to them, and usurped the rights and liberties of the people, in which usurpation the president had joined, would certainly have a tendency “to defame the government, the congress, and the president, and to bring them into disrepute and hatred among the people,” and would therefore constitute the offence. The inference or conclusion from certain facts might be true or not, and was mere matter of opinion. It was opinion then, political opinion, which was the real object of punishment. The deduction made from the facts just stated, he said, was in his opinion true, the consequence of which was, that the congress and president of the United States had not his confidence; with him they were in “disrepute.” But he could not prove that the opinion was true, as a fact; he could offer those reasons which convinced his mind of its truth, but they might not be satisfactory to a jury summoned with a special regard to their political opinions, or to a judge of the United States, most of whom had already pronounced their opinion on the subject, either in pamphlets, or political instead of legal charges to the grand juries of the several circuits of the United States; thus prejudging a constitutional question, which they knew would be made, if ever the law was attempted to be carried into effect.

He said he would state one more case to exemplify his opinion. If at the time of British oppressions, when the parliament of England boldly implied the right to make laws for, and to tax the American people, without representation, any man had by writing maintained that representation and taxation were inseparable, and that it was an usurpation and assumption of power by parliament to impose taxes on the American colonies, who were not represented in parliament, the fact here stated would not offend, because true; but the conclusion, the charge of usurpation, made upon the British government, would certainly have a tendency to bring it into “disrepute and hatred” among the people, as it did most effectually in America, and would have constituted the offence. This opinion, though now clearly admitted to be true, was then new, and could not be proven true to an English judge and jury, for they were so impressed with its falsity, that the nation undertook and carried on a bloody and expensive war, to correct its error. He concluded that the provisions of this act abridged and infringed the liberty of the press, which at the time of the adoption of the constitution had no other restraint than the responsibility of the author to the individual who might be injured by his writing or printing: that they destroyed all enquiry into political motives, silenced scrutiny, weakened the responsibility of public servants, and established political and executive infallibility. That the solicitude discovered by the government to defend itself against the attacks of its own citizens, was an evidence that its acts would not deserve their confidence and esteem: that the solicitude thus expressed by threats of fine and imprisonment, to keep the president for the time being from coming “into disrepute,” was evidence of a fear that a comparison of motives and views would prove favorable to his competitor, and was calculated to keep the real merits of competition out of view, inasmuch as the merits of one of the proposed candidates could not be insisted on to advantage, without exposing the demerits of the other, which would tend to bring him “into disrepute.” And if the one to whom the want of merit should be ascribed, should be president for the time being, thus to bring him into “disrepute,” would be to bring the person discussing the subject into the pains of fine and imprisonment.

It had been contended, said Mr. Daniel, by the gentleman from Frederick, that the adoption of the resolutions would be an infringement of the right of the people to petition. He, Mr. Daniel, would slate, that this right might be exercised by an individual, by an assemblage of individuals, or by the representatives of the people; which last mode was preferable, when the sovereignty of the state, as well as the appropriate rights of the people was attacked, as in the present case. He conceived, however, that the law in question had very much abridged the right of the people to petition and remonstrate. The necessity and propriety of petitions and remonstrance’s could not be seen but by discussion: the right itself could not be effectually used, without “counseling and advising together.” Three or more persons would constitute an “unlawful assembly;” for it would be easily said, that they were unlawfully assembled, when they intended, by discussing certain acts of the president, or laws of the government, “to defeat” the same, by inducing the people to petition and remonstrate; or if the same were not defeated, by virtue of such petition and remonstrance, to bring the government and president into “disrepute,” for continuing such acts and laws in operation, against which the people had petitioned and remonstrated. But those things being offences, and so enumerated in one clause of the law, an assembly of three or more persons, contemplating the objects just described, would be “unlawful,” within the purview of the act, and subject to fine and imprisonment. Again, he said, the dangerous and ruinous tendency of certain measures, might not be observed by the people of any particular district. A few, however, might wish a petition to be made, to remove the grievance of the measures; in order to which, they would individually address the district by writing, in which they would expose and censure the evil tendency of the said measures, to excite the people to petition and remonstrate, “to defeat” the same, or necessarily to bring the friends of the continuance thereof into “disrepute.” This would be an offence within the purview of the second clause of the law. Thus, said he, by one act we have seen, that that clause of the constitution, which secures the right of speech, of the press, of petition, of the free exercise of religious opinion to the people, is prostrated in every respect, except as it relates to religion. And this last and most invaluable right, he had no doubt would soon be invaded, inasmuch as he had been informed, that the friends of the present measures had already begun to insinuate, that an “established church was one of the strongest props to government:” and inasmuch, that the same reasons might be urged in its favor, as in favor of the abridgment of the liberty of the press. But it was said, that the press was still left free to print truth: “its licentiousness and abuse” are only forbid. So it might be said of religion: true religion only ought to be tolerated: the abuse of religion ought to be forbidden: the “licentiousness” of particular sectaries ought to be restrained.

He said, he was fearful that he had already trespassed upon the patience of the committee, and he would hasten to a conclusion, with a few remarks on the particular shape and address of the resolutions. It had been objected by gentlemen, that it was going too far to declare the acts in question, to be “no law, null, void and of no effect:” that it was sufficient to say they were unconstitutional. He said, if they were unconstitutional, it followed necessarily that they were “not law, but null, void and of no effect.” But, if those particular words were offensive to gentlemen he had no objection to any modification, so the principle were retained. As to the objection, that they were improperly addressed to the other states, Mr. Daniel said, he supposed that this mode was extremely eligible. If the other states think with this, that the laws are unconstitutional, the laws will be repealed, and the constitutional question will be settled by this declaration of a majority of the states: thereby destroying the force of this precedent, and precluding from any future congress, who might be disposed to carry the principle to a more pernicious and ruinous extent, the force of any argument which might be derived from these laws. If, on the contrary, a sufficient majority of the states should declare their opinion, that the constitution gave congress authority to pass these laws, the constitutional question would still be settled; but an attempt might be made so to amend the constitution, as to take from congress this authority, which in our opinion was so pernicious and dangerous.

He then concluded by saying, that something must be done: the people were not satisfied: they expected that this legislature would adopt some measure on this subject: that the constitution of the United States was the basis of public tranquility; the pledge of the sovereignty of the states, and of the liberties of the people. But, said he, this basis of public tranquility, this pledge of liberty and security is but a name, a mere phantom, unless it be strictly observed. It became our duty to watch attentively, to see that it was not violated; to see that it was equally observed by those who govern, and by those who are destined to obey. To attack the constitution was an offence against society; and if those guilty of it were invested with authority, they added to the offence a perfidious abuse of the power with which they were entrusted. It was our duty, said he, to suppress this abuse with our utmost vigor and vigilance. It was strange to see a free constitution openly and boldly attacked by those who were put in power under it. It was generally by silent and slow attacks, that free governments had progressively changed, till very little of their original texture and principles remained: that the doctrine of implication had introduced innovations, under the influence and operation of which, the freest governments had been enslaved. It was our duty to guard against innovations. The people of Virginia had been attentive to this subject. The petitions and remonstrances, which had been read to the committee, proved that the people were seriously alarmed at the innovations of the federal government. He said they proved more: they proved that the people thought that their servants, in the administration of the federal government, were not even modest enough to wait the increase of their power by progressive change. That their ambition exceeded the resources of the doctrine of implication: that their thirst of power could not be satiated, but by a direct attack upon the constitution, and a prostration of the great rights of the people. He said, this apprehension of the people, which he thought just, would be satisfied. He thought the mode proposed by the resolutions was most likely to effect this purpose; as well as other important purposes. He said, if they who were the representatives of the people, would not act for them when called upon, the people will speak for themselves; and as the voice of God, they would be heard. He hoped this final and dreadful appeal would never be necessary. He preferred the resolutions, and hoped they would be adopted by the committee. ..

Related: The Sedition Act of 1918 signed into law by Progressive President Thomas Woodrow Wilson

During World War I, libel laws surfaced again. The Sedition Act of 1918was part of an amendment to the Espionage Act, created in 1917 to prohibit “false statements” that might “impede military success.”

The revisions prohibited not only public criticism of the government, but also forbade “any abusive language about … the Constitution of the United States, or the military or naval forces of the United States, or the flag of the United States, or the uniform of the Army or Navy.”

It extended further to target any person who displayed the flag of an enemy country, or attempted to curb the production of goods needed for war. Both the Espionage Act and Sedition Act were repealed in 1921.

Because the Sedition Acts of 1798 and 1918 were each in effect only for three years, neither was ever challenged in the U.S. Supreme Court. In the 1964 case of New York Times Co. v. Sullivan, the Supreme Court ruled that the First Amendment prevented a public official from charging a fine for libel, “unless ‘actual malice’—knowledge that statements are false or in reckless disregard of the truth—is alleged and proved.”

The Court took this opportunity to officially declare the Sedition Act of 1798, which had expired over 150 years earlier, unconstitutional: “the Act, because of the restraint it imposed upon criticism of government and public officials, was inconsistent with the First Amendment.”

Justice William Brennan quoted James Madison, stating, “The censorial power is in the people over the Government, and not in the Government over the people.”

Text of Act(s)

An act in addition to the act entitled, “An act for the punishment of certain crimes against the United States.”

[Approved July 14, 1798.]


SECTION I. Punishes combinations against United States government.

1. Definition of offence:
Unlawfully to combine or conspire together to oppose any measure of the government of the United States, &c. This section was not complained of.

2. Grade of offence:
A high misdemeanour.

3. Punishment:
Fine not exceeding $5000, and imprisonment six months to five years.

SECTION II. Punishes seditious writings.
1. Definition of offence:

To write, print, utter or publish, or cause it to be done, or assist in it, any false, scandalous, and malicious writing against the government of the United States, or either House of Congress, or the President, with intent to defame, or bring either into contempt or disrepute, or to excite against either the hatred of the people of the United States, or to stir up sedition, or to excite unlawful combinations against the government, or to resist it, or to aid or encourage hostile designs of foreign nations.

2. Grade of offence:
A misdemeanour.
3. Punishment:
Fine not exceeding $2000, and imprisonment not exceeding two years.

SECTION III. Allows accused to give in evidence the truth of the matter charged as libellous.

SECTION IV. Continues the Act to 3d March, 1801.

SECTION 1. Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled. That if any persons shall unlawfully combine or conspire together, with intent to oppose any measure or measures of the government of the United States, which are or shall be directed by proper authority, or to impede the operation of any law of the United States, or to intimidate or prevent any person holding a place or office in or under the government of the United States, from undertaking, performing, or executing his trust or duty: and if any person or persons, with intent as aforesaid, shall counsel, advise, or attempt to procure any insurrection, riot, unlawful assembly, or combination, whether such conspiracy, threatening, counsel, advice, or attempt shall have the proposed effect or not, he or they shall be deemed guilty of a high misdemeanour, and on conviction before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding five thousand dollars, and by imprisonment during a term of not less than six months, nor exceeding five years; and further, at the discretion of the court, may be holden to find sureties for his good behaviour, in such sum, and for such time, as the said court may direct.

SECT. 2. And be it further enacted, That if any person shall write, print, utter, or publish, or shall cause or procure to be written, printed, uttered, or published, or shall knowingly and willingly assist or aid in writing, printing, uttering, or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either House of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either House of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States, or to stir up sedition within the United States; or to excite any unlawful combinations therein, for opposing or resisting any law of the United States, or any act of the President of the United States, done in pursuance of any such law, or of the powers in him vested by the Constitution of the United States; or to resist, oppose, or defeat any such law or act; or to aid, encourage or abet any hostile designs of any foreign nation against the United States, their people or government, then such person, being thereof convicted before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years.

SECT. 3. And be it further enacted and declared, That if any person shall be prosecuted under this act for the writing or publishing any libel aforesaid, it shall be lawful for the defendant, upon the trial of the cause, to give in evidence in his defence, the truth of the matter contained in the publication charged as a libel. And the jury who shall try the cause shall have a right to determine the law and the fact, under the direction of the court, as in other cases.

SECT. 4. And be it further enacted, That this act shall continue and be in force until the third day of March, one thousand eight hundred and one, and no longer: Provided, That the expiration of the act shall not prevent or defeat a prosecution and punishment of any offence against the law, during the time it shall be in force.

See also:
Constitution of the United States and it’s Governmental Operations (In Plain English)
The Importance of the Freedom of the Press; by Senator Ebenezer Mack (1791-1849)
THE LIBERTY OF THE PRESS by Charles F. Partington 1836
George Mason of Virginia the Father of the Declaration of Independence

RIGHTS OF AMERICAN CITIZENS: The Powers delegated to the General Government in the Federal Constitution
RIGHTS OF AMERICAN CITIZENS: The mode of obtaining redress for infringement of civil or political rights by officers of the government
RIGHTS OF AMERICAN CITIZENS: The Liberty of Speech and of the Press
RIGHTS OF AMERICAN CITIZENS: The Law of Libel in relation to Public Officers
3. “Resolutions of Virginia and Kentucky” by James Madison, Thomas Jefferson



Happy Father’s Day

Over 6,00 years ago,
God seated majestically on His throne,
Became thoughtful,
T’ was a feeling of inadequacy,
‘I must have an heir to who can enjoy his own domain,
(Of course with my privileges at his disposal,
His continuous praise will be my delight)’,
God thought of man becoming the
Focus of their attention from heaven,
Like the first child of a young couple,
‘What’s my glory without man’, he wondered,
Then a casual walk he took,
Throughout the universe he had created,
Then at planet earth he made up his mind,
To transform the shapeless and void dark earth,
Into a place of life and light,
Then at last God spoke,
‘Let there be light’,
His man will be a product of light,
God paused, and named at work done,
The first day.

First days followed
God’s preparation for man continued,
Each day speaking the WORD to create,
The earth, He made,
The sun for day, season and yearly count,
The seas, rivers, sky and earth he filled,
With creatures, fishes birds and beasts,
Every creation capable of reproducing itself,
All for the comfort of man and to dominate,
Then came the 6th and most glamorous day,
The reason for all the works and expedition,
The day for God to reproduce Himself onto the earth,

And God spokes, this time to His son and spirit as well,
‘Let us make man in our image,
To commune with us daily’,
For this venture in particular,
They employed the use of their hands
Thus on the 6th day man came into being,
The 1st father entered the world to rule,
He named everything that was made,
‘Noun’ thus becoming synonymous to man,
Indeed all was very good
And on the seventh He rested.

O the depth of the riches both the wisdom and knowledge of
How unsearchable are His judgments and His
Manifestations beyond discovery
We give all the glory to our Almighty Father in Heaven,
He has made man heroes and we are proud to be His.
FOR crowned man with glory and honor,
As we celebrate all fathers today,
We dedicate today,
To the father of all fathers, Jehovah is His name.
Today thus also becomes ‘Happy our Heavenly father’s day!!!

Evans D- Caesar

Butterfly Kisses by Bob Carlisle & Randy Thomas


Butterfly Kisses
There’s two things I know for sure.
She was sent here from heaven,
and she’s daddy’s little girl.
As I drop to my knees by her bed at night,
she talks to Jesus, and I close my eyes.
And I thank God for all of the joy in
my life, But most of all, for…

Butterfly kisses after bedtime prayer.
Stickin’ little white flowers all up in her hair.
“Walk beside the pony daddy,
it’s my first ride.”
“I know the cake looks funny,
daddy, but I sure tried.”
Oh, with all that I’ve done wrong,
I must have done something right
To deserve a hug every morning,
And butterfly kisses at night.

Sweet sixteen today,
She’s looking like her momma
a little more everyday.
One part woman, the other part girl.
To perfume and makeup,
form ribbons and curls.
Trying her wings out
in a great big world. But I remember…

Butterfly kisses after bedtime prayer.
Stickin’ little white flowers all up in her hair.
“You know how much I love you daddy,
But if you don’t mind,
I’m only going to kiss you on
the cheek this time.”
With all that I’ve done wrong
I must have done something right.
To deserve her love every morning,
And butterfly kisses at night.

All the precious time
Like the wind, the years go by
Precious butterfly
Spread your wings and fly

She’ll change her name today.
She’ll make a promise,
and I’ll give her away.
Standing in the bride room
just staring at her,
she asked me what I’m thinking,
and I said “I’m not sure,
I just feel like I’m losing my baby girl.”
Then she leaned over….and gave me….

Butterfly kisses, with her mama there
Sticking little flowers all up in her hair
“Walk me down the aisle, daddy,
it’s just about time.”
“Does my wedding gown look pretty, daddy?”
“Daddy, don’t cry.”
With all that I’ve done wrong,
I must have done something right
To deserve her love every morning,
And butterfly kisses
I couldn’t ask God for more, man, this is what love is
I know I’ve gotta let her go, but I’ll always remember
Every hug in the morning, and butterfly kisses…
Bob Carlisle & Randy Thomas


Daddy’s Girl
When you were young, pony-tailed,
face full of playful freckles,
were you a daddy’s girl?
I was. I still am.
Did you look to him for your security,
for love and attention,
for the understanding, and the patience you lacked
as a child?
My daddy was the center of my small world,
the focus of my affections,
the star that lit my life, shining bright.
Shining still in my heart.
The years have led me here,
weathered with maturity and responsibilities,
and I see more clearly now.
The hardships, burdens of love,
and all the small sacrifices he made for me,
for our family.
He created stability, a place to call home.
All the photographs I browse through
of a child long forgotten, scarcely remembered
smiling, so happy and so loved.
The mere thought of becoming that role model
is enough to send me cowering, afraid…
looking for guidance.
Turning to my father and my more for support,
advice, wise counsel, and for approval.
Grown up, I see differently now…
A new perspective of a man I have always known.
My heart is full, my emotions overpowering
just in the certainty of that bond.
He’s been there for me through all the conflicts
helping me over the rough, ragged stones of growing up.
My respect for him is unending,
faith is unbound, and love is unquestioning.
Even in the midst of all my imperfections, he is lenient,
ignoring the pitfalls, the downfalls, the shortcomings,
he just accepted me as I was, as I am.
The sheer purity of it leaves me awe-struck
and it lifts me up, it holds my head a little higher,
it keeps me in balance,
harmonizing with the world around me
beautifully, like an inspired masterpiece from the soul
of an honest man.
I am honored to know him, to love him, to be of him.
He’s my hero, and I am his daughter, his little girl.

Fathers are Wonderful People by Debora Waddell


Fathers are Wonderful People
Fathers are wonderful people
Too little understood,
And we do not sing their praises
As often as we should…

For, somehow, Father seems to be
The man who pays the bills,
While Mother binds up little hurts
And nurses all our ills…

And Father struggles daily
To live up to “HIS IMAGE”
As protector and provider
And “hero or the scrimmage”…

And perhaps that is the reason
We sometimes get the notion,
That Fathers are not subject
To the thing we call emotion,

But if you look inside Dad’s heart,
Where no one else can see
You’ll find he’s sentimental
And as “soft” as he can be…

But he’s so busy every day
In the grueling race of life,
He leaves the sentimental stuff
To his partner and his wife…

But Fathers are just WONDERFUL
In a million different ways,
And they merit loving compliments
And accolade of praise,

For the only reason Dad aspires
To fortune and success
Is to make the family proud of him
And to bring them happiness…

He’s a guardian and a guide,
Someone that we can count on
Debora Waddell

A Little Girl Needs Daddy
A little girl needs Daddy
For many, many things:
Like holding her high off the ground
Where the sunlight sings!
Like being the deep music
That tells her all is right
When she awakens frantic with
The terrors of the night.

Like being the great mountain
That rises in her heart
And shows her how she might get home
When all else falls apart.

Like giving her the love
That is her sea and air,
So diving deep or soaring high
She’ll always find him there.
Author Unknown

A Father Is:
There in every memory
See his love and care
Strength and hands to count on
Freely he does share
Provider, toil so faithfully
To make our dreams come true
Give strong and tender discipline
Though it is hard to do
A Father is God’s chosen one
To lead the family
And point it to His will for life
Of love and harmony…
Sue Skeen

My Dad’s Hands by David Kettler


My Dad’s Hands
Bedtime came, we were settling down,
I was holding one of my lads.
As I grasped him so tight, I saw a strange sight:
My hands. . .they looked like my dad’s!
I remember them well, those old gnarled hooks,
there was always a cracked nail or two.
And thanks to a hammer that strayed from its mark,
his thumb was a beautiful blue!
They were rough, I remember, incredibly tough,
as strong as a carpenter’s vice.
But holding a scared little boy at night,
they seemed to me awfully nice!
The sight of those hands – how impressive it was
in the eyes of his little boy.
Other dads’ hands were cleaner, it seemed
(the effects of their office employ).
I gave little thought in my formative years
of the reason for Dad’s raspy mitts:
The love in the toil, the dirt and the oil,
rusty plumbing that gave those hands fits!
Thinking back, misty-eyed, and thinking ahead,
when one day my time is done.
The torch of love in my own wrinkled hands
will pass on to the hands of my son.
I don’t mind the bruises, the scars here and there
or the hammer that just seemed to slip.
I want most of all when my son takes my hand,
to feel that love lies in the grip.
David Kettler

Fathers Can Be Solitary Mountains
Fathers can be solitary mountains,
All their love rock-like, steep, and strong.
Though warm and caring, somehow they belong
Halfway home to mothers’ bubbling fountains.
Each of us needs love that knows no quarter,
Reminding us of bonds that cross a border,
Strengthening our sense of right and wrong.
Author Unknown

Grandfathers Are Fathers Who Are Grand
Grandfathers are fathers who are grand,
Restoring the sense that our most precious things
Are those that do not change much over time.
No love of childhood is more sublime,
Demanding little, giving on demand,
Far more inclined than most to grant the wings
Allowing us to reach enchanted lands.
Though grandfathers must serve as second fathers,
Helping out with young and restless hearts,
Each has all the patience wisdom brings,
Remembering our passions more than others,
Soothing us with old and well-honed arts.
Author Unknown

My Dad
When I was just a tiny kid,
Do you remember when,
The time you kissed my bruises,
Or cleaned by soiled chin?

You scrambled for the balls I hit,
(Short-winded more than not,)
Yet, every time we’d play a game,
You praised the “outs” I caught.

It seems like only yesterday,
You wiped away my tears,
And late at night I called your name,
To chase away my fears.

Though time has changed your handsome grip,
Your hair is snowy white,
You gait’s a little slower now,
Thick glasses help your sight.

Oh, do I thirst for years gone by,
To be that growing lad,
Re-living all of the memories,
Of growing with my dad.
Author Unknown

Father’s Day by Mary Frances Bogle


Father’s Day
Over the years
As we grow old,
We remember our father
So brave and bold.

In the garden,
Leaning on the plow,
He would listen to me;
I see him now.

He would give advice
And understand;
He was always there
To lend a hand.

God made fathers
Strong and firm,
For he knew our lives
Would have great concerns.

So he gave us fathers
To teach us to pray,
And guide our lives,
And show us the way.

So on his day
Let’s take the time
To say “Thanks, dad.
I’m glad you’re mine.”
Mary Frances Bogle

What Makes a Dad
God took the strength of a mountain,
The majesty of a tree,
The warmth of a summer sun,
The calm of a quiet sea,
The generous soul of nature,
The comforting arm of night,
The wisdom of the ages,
The power of the eagle’s flight,
The joy of a morning in spring,
The faith of a mustard seed,
The patience of eternity,
The depth of a family need,
Then God combined these qualities,
When there was nothing more to add,
He knew His masterpiece was complete,
And so, He called it … Dad
Author Unknown

Governments Corrupted By Vice and Restored By Virtue: by Samuel Langdon 1775

corruption3Samuel Langdon Biography

This eminent man, celebrated alike for his piety and sterling patriotism, was born at Boston, Massachusetts. Through the exertions of his friends, who discovered in him a desire to obtain a liberal education, he was entered at Harvard College, from which institution he graduated with credit in 1740. From college he went to Portsmouth, in New Hampshire, where he was employed to take charge of a grammar school until 1745, at which time he was invited to preach in the First Church, as assistant to Mr. Fitch. Two years after, he was ordained, and from this time until the commencement of the difficulties between England and her colonies, he continued an active laborer for the cause of the church.

Dr. Langdon was a very zealous Whig. His bold and open opposition to the measures of the British government, rendered him highly acceptable to the patriots of New England, and through the influence of John Hancock and others, he was, in 1774, installed as successor of Mr. Locke in the presidency of Harvard College. When he took the chair it gave great delight to the sons of liberty; and in 1775, a month after the commencement of the war, he was chosen to preach the election sermon. This effort will be found in the following pages.

President Langdon’s connection with the college did not prove of the most satisfactory character. His administration was a perpetual struggle with difficulties and embarrassments, amid the dangers of civil war and the excitement of a political revolution. He wanted judgment, and had no spirit of government. He did not receive that respect and kindness from the students and others connected with the college, that were due his character as a scholar and a Christian. Under these circumstances he resigned the presidency, and in 1781, became the pastor of a church at Hampton Falls, near Portsmouth, New Hampshire. In 1788 he preached the election sermon at Concord, and the same year occupied a seat in the New Hampshire Convention, in which body he took an active part, and had an extensive influence in removing the prejudices which prevailed against the Federal Constitution. At the age of seventy-four, on the twenty-ninth of November, 1794, he closed a life well spent, beloved for his piety, hospitality, and good-will to his fellow-men.

Governments Corrupted By Vice and Restored By Virtue:  by Dr. Samuel Langdon 1775; Before the Honorable Congress of the Colony of the Massachusetts Bay. Assembled at Watertown, 31st Day of May, 1775. Being the Anniversary fixed by CHARTER for the Election of Counsellors;

References: The patriot preachers of the American Revolution, The Pulpit of the American Revolution, The God of Our Fathers, and The Chaplains and Clergy of the Revolution by Frank Moore, John W. Thornton, George Duffield, Jr., and Joel T. Headley  respectfully.

“The longer I live, the more convincing proofs I see of this truth, that God governs
in the affairs of men.”—Benjamin Franklin.

Background of the oration:

From one of the sources of information on this topic, “it occurred to us, would be the sermons that had been delivered on other National Fast Days. Many such being just at our hand, we turned them over with no little interest and curiosity. The more we “touched the bones of the prophets,” the more we felt that virtue came out of them.

“Faithful men,” indeed, were those old Fathers, to whom the Gospel in all its relations, both temporal and eternal, might be most safely entrusted! Though a reward was offered for their heads, they preached; though a Tory party in the Church might wish to keep them quiet, still they preached; though their brethren not infrequently found vehement fault with them for so doing, yet, the Word of God “burning like a fire in their bones,” they could not do otherwise than preach. The Chinese idea which so many have been endeavoring to inculcate of late, that “to speak of politics is to be guilty of death,” by such men as Mayhew, Witherspoon, Emmons, &c, would have been laughed to scorn!” Dumb dogs that cannot bark,” could not be said of them, any more than of Calvin, and Knox, and the staunch old English Puritans! Thank God that such men lived on this side of the Atlantic, as well as the other!

There is no excuse for us if we do not try, at least, to imitate their example. If ever the pulpit is to regain that influence which it has lost in our land, it must be by preaching occasionally such sermons as the following Dr. Langdon”

Dr. Samuel Langdon was moderator of the annual convention of the ministers, held, by special invitation of the Provincial Congress, at Watertown, June 1st, following election-day, when he signed the following letter:

“To the Hon. Joseph Warren, Esq., President of the Provincial Congress of the Colony of the Massachusetts Bay, etc.

“Sir : — We, the pastors of the Congregational churches of the Colony of the Massachusetts Bay, in our present annual convention,”— at Watertown, June 1, 1775, — ” gratefully beg leave to express the sense we have of the regard shown by the Honorable Provincial Congress to us, and the encouragement they have been pleased to afford to our assembling as a body this day. Deeply impressed with sympathy for the distresses of our much-injured and oppressed country, we are not a little relieved in beholding the representatives of this people, chosen by their free and unbiased suffrages, now met to concert measures for their relief and defence, in whose wisdom and integrity, under the smiles of Divine Providence, we cannot but express our entire confidence.

“As it has been found necessary to raise an army for the common safety, and our brave countrymen have so willingly offered themselves to this hazardous service, we are not insensible of the vast burden that their necessary maintenance must”—devolve —”upon the people. We therefore cannot forbear, upon this occasion, to offer our services to the public, and to signify our readiness, with the consent of our several congregations, to officiate, by rotation, as chaplains to the army.

“We devoutly commend the Congress, and our brethren in arms, to the guidance and protection of that Providence which, from the first settlement of this country, has so remarkably appeared for the preservation of its civil and religious rights.

“SAMUEL LANGDON, Moderator.”

Langdon was appointed to deliver the election sermon. By a special vote, Dr. Langdon’s Sermon was sent to each minister in the colony, and to each member of the Congress. The contest (the Revolutionary War) had then begun—blood had flowed at Lexington and Concord, and only three weeks before the battle of Bunker Hill had been fought. Boston was in possession of the British, and the Colonial Congress assembled at Harvard. There was no election of Councillors, but it was the anniversary of the day fixed by charter for the election. The Congress was perplexed and ignorant what course to adopt. His Majesty’s Governor was not there, neither would they elect a Council for His Majesty; and yet Congress had taken no decided steps toward the inauguration of an independent government.

Nevertheless until things assumed more definite shape they would fulfill, as far as they were concerned, the conditions of the Charter. They therefore met on the appointed day, and listened to a sermon from the learned Dr. Langdon.

He took for his text Isaiah, 1. 26: “And I will restore thy judges as at the first, and thy counsel as at the beginning. Afterward thou shalt be called the city of righteousness, the faithful city.” Nothing could be more appropriate than this text. It shows in what perfect harmony the pulses of the clergy and the people beat. The latter did not now need any instruction as to their rights, or appeals to assert them. They had already asserted them at the point of the bayonet. The die was cast, and every one asked what would the end be. The capital was in the hands of the brutal soldiery, and the patriots were driven from their homes which they might never see again. In such a crisis, in such a state of feeling, how beautiful, how appropriate and encouraging is this full, rich promise.

The Sermon: “Shall we rejoice, my fathers and brethren, or shall we weep together, on the return of this anniversary, which from the first settlement of this colony has been sacred to liberty, to perpetuate that invaluable privilege of choosing, from among ourselves, wise men, fearing God, and hating covetousness, to be honorable counselors, to constitute one essential branch of that happy government which was established on the faith of royal charters?

On this day, the people have from year to year assembled, from all our towns, in a vast congregation, with gladness and festivity, with every ensign of joy displayed in our metropolis, which now, alas I is made a garrison of mercenary troops, the stronghold of despotism. But how shall I now address you from this desk, remote from the capital, and remind you of the important business which distinguished this day in our calendar, without spreading a gloom over this assembly, by exhibiting the melancholy change made in the face of our public affairs?

We have lived to see the time when British liberty is just ready to expire; when that constitution of government which has so long been the glory and strength of the English nation, is deeply undermined and ready to tumble into ruins;—when America is threatened with cruel oppression, and the arm of power is stretched out against New England, and especially against this colony, to compel us to submit to the arbitrary acts of legislators who are not our representatives, and who will not themselves bear the least part of the burdens which, without mercy, they are laying upon us. The most formal and solemn grants of kings to our ancestors are deemed by our oppressors as of little value, and they have mutilated the charter of this colony in the most essential parts, upon false representations, and new invented maxims of policy, without the least regard to any legal process. We are no longer permitted to fix our eyes on the faithful of the land, and trust in the wisdom of their counsels, and the equity of their judgment; but men in whom we can have no confidence, whose principles are subversive of our liberties, whose aim is to exercise lordship over us, and share among themselves the public wealth; men who are ready to serve any master, and execute the most unrighteous decrees for high wages, whoso faces we never saw before, and whose interests and connections may be far divided from us by the wide Atlantic, are to be set over us as counselors and judges, at the pleasure of those who have the riches and power of the nation in their hands, and whose noblest plan is to subjugate the colonies first, and then the whole nation to their will.

corruption4That we might not have it in our power to refuse the most absolute submission to their unlimited claims of authority, they have not only endeavored to terrify us with fleets and armies sent to our capital, and distressed and put an end to our trade, particularly that important branch of it, the fishery(fn1), but at length attempted, by a sudden march of a body of troops in the night, to seize and destroy one of our magazines, formed by the people merely for their own security; if, as after such formidable military preparation on the other side, matters should not be pushed to an extremity. By this, as might well be expected, a skirmish was brought on; and it is most evident, from a variety of concurring circumstances, as well as numerous depositions, both of the prisoners taken by us at that time, and our men then on the spot only as spectators, that the fire began first on the side of the king’s troops. At least five or six of our inhabitants were murderously killed by the regulars at Lexington, before any man attempted to return the fire, and when they were actually complying with the command to disperse; and two more of our brethren were likewise killed at Concord Bridge by a fire from the king’s soldiers, before(fn2) the engagement began on our side. But whatever credit falsehoods transmitted to Great Britain from the other side may gain, the matter may be rested entirely on this—that ho that arms himself to commit a robbery, and demands the traveler’s purse, by the terror of instant death, is the first aggressor, though the other should take the advantage of discharging his pistol first and killing the robber.

The alarm was sudden; but in a very short time spread far and wide; the nearest neighbors in haste ran together to assist their brethren, and save their country. Not more than three or four hundred met in season, and bravely attacked and repulsed the enemies of liberty, who retreated with great precipitation. But by the help of a strong reinforcement, notwithstanding a close pursuit, and continual loss on their side, they acted the part of robbers and savages, by burning(fn3), plundering, and damaging almost every house in their way, to the utmost of their power, murdering the unarmed and helpless, and not regarding the weakness of the tender sex, until they had secured themselves beyond the reach of our terrifying arms. (fn4)

That ever memorable day, the nineteenth of April, is the date of an unhappy war openly begun, by the ministers of the king of Great Britain, against his good subjects in this colony, and implicitly against all the colonies. But for what! Because they have made a noble stand for their natural and constitutional rights, in opposition to the machinations of wicked men, who are betraying their royal master, establishing Popery in the British dominions, and aiming to enslave and ruin the whole nation, that they may enrich themselves and their vile dependents with the public treasures, and the spoils of America.

“We have used our utmost endeavors, by repeated humble petitions and remonstrances—by a series of unanswerable reasonings published from the press, in which the dispute has been fairly stated, and the justice of our opposition clearly demonstrated—and by the mediation of some of the noblest and most faithful friends of the British constitution, who have powerfully pleaded our cause in Parliament—to prevent such measures as may soon reduce the body politic to a miserable, dismembered, dying trunk, though lately the terror of all Europe. But our king, as if impelled by some strange fatality, is resolved to reason with us only by the roar of his cannon, and the pointed arguments of muskets and bayonets. Because we refuse submission to the despotic power of a ministerial Parliament, our own sovereign, to whom we have been always ready to swear true allegiance— whoso authority we never meant to cast off—who might have continued happy in cheerful obedience, as faithful subjects as any in his dominions—has given us up to the rage of his ministers, to be seized at sea by the rapacious commanders of every little sloop of war and piratical cutter, and to be plundered and massacred by land by mercenary troops, who know no distinction betwixt an enemy and a brother, between right and wrong; but only, like brutal pursuers, to hunt and seize the prey pointed out by their masters.

We must keep our eyes fixed on the supreme government of the ETERNAL KING, as directing all events, setting up or pulling down the kings of the earth at his pleasure, suffering the best forms of human government to degenerate and go to ruin by corruption; or restoring the decayed constitutions of kingdoms and states, by reviving public virtue and religion, and granting the favorable inter-positions of his providence. To this our text leads us; and though I hope to be excused on this occasion from a formal discourse on the words in a doctrinal way, yet I must not wholly pass over the religions instruction contained in them.

Let us consider—that for the sins of a people God may suffer the best government to be corrupted, or entirely dissolved; and that nothing but a general reformation can give ground to hope that the public happiness will be restored, by the recovery of the strength and perfection of the state, and that divine Providence will interpose to fill every department with wise and good men.

Isaiah prophesied about the time of the captivity of the ten tribes of Israel, and about a century before the captivity of Judah. The kingdom of Israel was brought to destruction, because its iniquities were full; its counselors and judges were wholly taken away, because there remained no hope of reformation. But the scepter did not entirely depart from Judah, nor a lawgiver from between his feet, till the Messiah came; yet greater and greater changes took place in their political affairs; their government degenerated in proportion as their vices increased, till few faithful men were left in any public offices; and, at length, when they were delivered up for seventy years into the hands of the king of Babylon, scarce any remains of their original excellent civil polity appeared among them.

The Jewish government, according to the original constitution which was divinely established, if considered merely in a civil view, was a perfect republic. The heads of their tribes, and elders of their cities, were their counselors and judges. They called the people together in more general or particular assemblies, took their opinions, gave advice, and managed the public affairs according to the general voice. Counselors and judges comprehend all the powers of that government, for there was no such thing as as legislative authority belonging to it, — their complete code of laws being given immediately from God by the hand of Moses. And let them who cry up the divine right of kings consider that the only form of government which had a proper claim to a divine establishment was so far from including the idea of a king, that it was a high crime for Israel to ask to be in this respect like other nations; and when they were gratified, it was rather as a just punishment of their folly, that they might feel the burdens of court pageantry, of which they were warned by a very striking description, than as a divine recommendation of kingly authority. Every nation, when able and agreed, has a right to set up over themselves any form of government which to them may appear most conducive to their common welfare.(fn5) The civil polity of Israel is doubtless an excellent general model, allowing for some peculiarities; at least, some principal laws and orders of it may be copied to great advantage in more modern establishments.

When a government is in its prime, the public good engages the attention of the whole; the strictest regard is paid to the qualifications of those who hold the offices of the state; virtue prevails; everything is managed with justice, prudence, and frugality; the laws are founded on principles of equity rather than mere policy, and all the people are happy. But vice will increase with the riches and glory of an empire; and this gradually tends to corrupt the constitution, and in time bring on its dissolution. This may be considered not only as the natural effect of vice, but a righteous judgment of Heaven, especially upon a nation which has been favored with the blessings of religion and liberty, and is guilty of undervaluing them, and eagerly going into the gratification of every lust.

In this chapter the prophet describes the very corrupt state of Judah in his day, both as to religion and common morality, and looks forward to that increase of wickedness which would bring on their desolation and captivity. They were “a sinful nation, a people laden with iniquity, a seed of evil-doers, children that were corrupters, who had forsaken the Lord, and provoked the Holy One of Israel to anger.” The whole body of the nation, from head to foot, was full of moral and political disorders, without any remaining soundness. Their religion was all mere ceremony and hypocrisy ; and even the laws of common justice and humanity were disregarded in their public courts. They had counselors and judges, but very different from those at the beginning of the commonwealth. Their princes were rebellious against God and the constitution of their country, and companions of thieves, — giving countenance to every artifice for seizing the property of the subjects into their own hands, and robbing the public treasury. Every one loved gifts, and followed after rewards ; they regarded the perquisites more than the duties of their office; the general aim was at profitable places and pensions; they were influenced in everything by bribery; and their avarice and luxury were never satisfied, but hurried them on to all kinds of oppression and violence, so that they even justified and encouraged the murder of innocent persons to support their lawless power and increase their wealth. And God, in righteous judgment, left them to run into all this excess of vice, to their own destruction, because they had forsaken him, and were guilty of willful inattention to the most essential parts of that religion which had been given them by a well-attested revelation from heaven.

The Jewish nation could not but see and feel the unhappy consequences of so great corruption of the state. Doubtless they complained much of men in power, and very heartily and liberally reproached them for their notorious misconduct. The public greatly suffered, and the people groaned and wished for better rulers and better management; but in vain they hoped for a change of men and measures and better times when the spirit of religion was gone, and the infection of vice was become universal. The whole body being so corrupted, there could be no rational prospect of any great reformation in the state, but rather of its ruin, which accordingly came on in Jeremiah’s time. Yet if a general reformation of religion and morals had taken place, and they had turned to God from all their sins, — if they had again recovered the true spirit of their religion, — God, by the gracious interpositions of his providence, would soon have found out methods to restore the former virtue of the state, and again have given them men of wisdom and integrity, according to their utmost wish, to be counsellors and judges. This was verified in fact after the nation had been purged by a long captivity, and returned to their own land humbled and filled with zeal for God and his law.

By all this we may be led to consider the true cause of the present remarkable troubles which are come upon Great Britain and these colonies, and the only effectual remedy.

We have rebelled against God. We have lost the true spirit of Christianity, though we retain the outward profession and form of it. We have neglected and set light by the glorious gospel of our Lord Jesus Christ, and his holy commands and institutions. The worship of many is but mere compliment to the Deity, while their hearts are far from him. By many the gospel is corrupted into a superficial system of moral philosophy, little better than ancient Platonism; and, after all the pretended refinements of moderns in the theory of Christianity, very little of the pure practice of it is to be found among those who once stood foremost in the profession of the gospel. In a general view of the present moral state of Great Britain it may be said, “There is no truth, nor mercy, nor knowledge of God in the land. By swearing, and lying, and killing, and stealing, and committing adultery,” their wickedness breaks out, and one murder after another is committed, under the connivance and encouragement even of that authority by which such crimes ought to be punished, that the purposes of oppression and despotism may be answered. As they have increased, so have they sinned; therefore God is changing their glory into shame. The general prevalence of vice has changed the whole face of things in the British government.

The excellency of the constitution has been the boast of Great Britain and the envy of neighboring nations. In former times the great departments of the state, and the various places of trust and authority, were filled with men of wisdom, honesty, and religion, who employed all their powers, and were ready to risk their fortunes and their lives, for the public good. They were faithful counselors to kings; directed their authority and majesty to the happiness of the nation, and opposed every step by which despotism endeavored to advance. They were fathers of the people, and sought the welfare and prosperity of the whole body. They did not exhaust the national wealth by luxury and bribery, or convert it to their own private benefit or the maintenance of idle, useless officers and dependents, but improved it faithfully for the proper purposes — for the necessary support of government and defence of the kingdom. Their laws were dictated by wisdom and equality, and justice was administered with impartiality. Religion discovered its general influence among all ranks, and kept out great corruptions from places of power.

But in what does the British nation now glory? — In a mere shadow of its ancient political system, — in titles of dignity without virtue, — in vast public treasures continually lavished in corruption till every fund is exhausted, notwithstanding the mighty streams perpetually flowing in,— in the many artifices to stretch the prerogatives of the crown beyond all constitutional bounds, and make the king an absolute monarch, while the people are deluded with a mere phantom of liberty. What idea must we entertain of that great government, if such a one can be found, which pretends to have made an exact counterbalance of power between the sovereign, the nobles and the commons, so that the three branches shall be an effectual check upon each other, and the united wisdom of the whole shall conspire to promote the national felicity, but which, in reality, is reduced to such a situation that it may be managed at the sole will of one court favorite? What difference is there betwixt one(fn6) man’s choosing, at his own pleasure, by his single vote, the majority of those who are to represent the people, and his purchasing in such a majority, according to his own nomination, with money out of the public treasury, or other effectual methods of influencing elections? And what shall we say if, in the same manner, by places, pensions, and other bribes, a minister of the crown can at any time gain over a nobler majority likewise to be entirely subservient to his purposes, and, moreover, persuade his royal master to resign himself up wholly to the direction of his counsels? If this should be the case of any nation, from one seven years’ end to another, the bargain and sale being made sure for such a period, would they still have reason to boast of their excellent constitution?(fn7) Ought they not rather to think it high time to restore the corrupted, dying state to its original perfection? I will apply this to the Roman senate under Julius Caesar, which retained all its ancient formalities, but voted always only as Caesar dictated. If the decrees of such a senate were urged on the Romans, as fraught with all the blessings of Roman liberty, we must suppose them strangely deluded if they were persuaded to believe it.

corruption2The pretense for taxing America has been that the nation contracted an immense debt for the defence of the American colonies, and that, as they are now able to contribute some proportion towards the discharge of this debt, and must be considered as part of the nation, it is reasonable they should be taxed, and the Parliament has a right to tax and govern them, in all cases whatever, by its own supreme authority. Enough has been already published on this grand controversy, which now threatens a final separation of the colonies from Great Britain. But can the amazing national debt be paid by a little trifling sum, squeezed from year to year out of America, which is continually drained of all its cash by a restricted trade with the parent country, and which in this way is taxed to the government of Britain in a very large proportion? Would it not be much superior wisdom, and sounder policy, for a distressed kingdom to retrench the vast unnecessary expenses continually incurred by its enormous vices; to stop the prodigious sums paid in pensions, and to numberless officers, without the least advantage to the public; to reduce the number of devouring servants in the great family; to turn their minds from the pursuit of pleasure and the boundless luxuries of life to the important interests of their country and the salvation of the commonwealth? Would not a reverend regard to the authority of divine revelation, a hearty belief of the, gospel of the grace of God, and a general reformation of all those vices which bring misery and ruin upon individuals, families, and kingdoms, and which have provoked Heaven to bring the nation into such perplexed and dangerous circumstances, be the surest way to recover the sinking state, and make it again rich and flourishing? Millions might annually be saved if the kingdom were generally and thoroughly reformed; and the public debt, great as it is, might in a few years be cancelled by a growing revenue, which now amounts to full ten millions per annum, without laying additional burdens on any of the subjects. But the demands of corruption are constantly increasing, and will forever exceed all the resources of wealth which the wit of man can invent or tyranny impose.

Into what fatal policy has the nation been impelled, by its public vices, to wage a cruel war with its own children in these colonies, only to gratify the lust of power and the demands of extravagance! May God, in his great mercy, recover Great Britain from this fatal infatuation, show them their errors, and give them a spirit of reformation, before it is too late to avert impending destruction! May the eyes of the king be opened to see the ruinous tendency of the measures into which he has been led, and his heart inclined to treat his American subjects with justice and clemency, instead of forcing them still further to the last extremities! God grant some method may be found out to effect a happy reconciliation, so that the colonies may again enjoy the protection of their sovereign, with perfect security of all their natural rights and civil and religious liberties.

But, alas! have not the sins of America, and of New England in particular, had a hand in bringing down upon us the righteous judgments of Heaven? Wherefore is all this evil come upon us? Is it not because we have forsaken the Lord? Can we say we are innocent of crimes against God? No, surely. It becomes us to humble ourselves under his mighty hand, that he may exalt us in due time. However unjustly and cruelly we have been treated by man, we certainly deserve, at the hand of God, all the calamities in which we are now involved. Have we not lost much of that spirit of genuine Christianity which so remarkably appeared in our ancestors, for which God distinguished them with the signal favors of providence when they fled from tyranny and persecution into this western desert? Have we not departed from their virtues? Though I hope and am confident that as much true religion, agreeable to the purity and simplicity of the gospel, remains among us as among any people in the world, yet, in the midst of the present great apostasy of the nations professing Christianity, have not we likewise been guilty of departing from the living God? Have we not made light of the gospel of salvation, and too much affected the cold, formal, fashionable religion of countries grown old in vice, and overspread with infidelity? Do not our follies and iniquities testify against us? Have we not, especially in our seaports, gone much too far into the pride and luxuries of life? Is it not a fact, open to common observation, that profaneness, intemperance, unchastity, the love of pleasure, fraud, avarice, and other vices, are increasing among us from year to year? And have not even these young governments been in some measure infected with the corruptions of European courts? Has there been no flattery, no bribery, no artifices practiced, to get into places of honor and profit, or carry a vote to serve a particular interest, without regard to right or wrong? Have our statesmen always acted with integrity, and every judge with impartiality, in the fear of God? In short, have all ranks of men showed regard to the divine commands, and joined to promote the Redeemer’s kingdom and the public welfare? I wish we could more fully justify ourselves in all these respects. If such sins have not been so notorious, among us as in older countries, we must nevertheless remember that the sins of a people who have been remarkable for the profession of godliness, are more aggravated by all the advantages and favors they have enjoyed, and will receive more speedy and signal punishment; as God says of Israel: “You only have I known of all the families of the earth, therefore will I punish you for all your iniquities.” (Amos 3:2)

The judgments now come upon us are very heavy and distressing, and have fallen with peculiar weight on our capital, where, notwithstanding the plighted honor of the chief commander of the hostile troops, many of our brethren are still detained, as if they were captives;(fn8) and those that have been released have left the principal part of their substance, which is withheld, by arbitrary orders, contrary to an express treaty, to be plundered by the army.(fn9)

Let me address you in the words of the prophet: “O Israel! return unto the Lord thy God, for thou hast fallen by thine iniquity.” My brethren, let us repent, and implore the divine mercy; let us amend our ways and our doings, reform everything which has been provoking to the Most High, and thus endeavor to obtain the gracious interpositions of Providence for our deliverance.

If true religion is revived by means of these public calamities, and again prevails among us, — if it appears in our religious assemblies, in the conduct of our civil affairs, in our armies, in our families, in all our business and conversation, — we may hope for the direction and blessing of the Most High, while we are using our best endeavors to preserve and restore the civil government of this colony, and defend America from slavery.

Our late happy government is changed into the terrors of military execution. Our firm opposition to the establishment of an arbitrary system is called rebellion, and we are to expect no mercy, but to yield property and life at discretion. This we are resolved at all events not to do, and therefore we have taken up arms in our own defence, and all the colonies are united in the great cause of liberty.

But how shall we live while civil government is dissolved? What shall we do without counselors and judges? A state of absolute anarchy is dreadful. Submission to the tyranny of hundreds of imperious masters, firmly embodied against us, and united in the same cruel design of disposing of our lives and subsistence at their pleasure, and making their own will our law in all cases whatsoever, is the vilest slavery, and worse than death.

Thanks be to God that he has given us, as men, natural rights, independent on all human laws whatever, and that these rights are recognized by the grand charter of British liberties. By the law of nature, any body of people, destitute of order and government, may form themselves into a civil society, according to their best prudence, and so provide for their common safety and advantage. When one form is found by the majority not to answer the grand purpose in any tolerable degree, they may, by common consent, put an end to it and set up another, — only, as all such great changes are attended with difficulty and danger of confusion, they ought not to be attempted without urgent necessity, which will be determined always by the general voice of the wisest and best members of the community.

Corruption1If the great servants of the public forget their duty, betray their trust, and sell their country, or make war against the most valuable rights and privileges of the people, reason and justice require that they should be discarded, and others appointed in their room, without any regard to formal resignations of their forfeited power.

It must be ascribed to some supernatural influence on the minds of the main body of the people through this extensive continent, that they have so universally adopted the method of managing the important matters necessary to preserve among them a free government by corresponding committees and congresses, consisting of the wisest and most disinterested patriots in America, chosen by the unbiased suffrages of the people assembled for that purpose in their several towns, counties, and provinces. So general agreement, through so many provinces of so large a country, in one mode of self-preservation, is unexampled in any history; and the effect has exceeded our most sanguine expectations. Universal tumults, and all the irregularities and violence of mobbish factions, naturally arise when legal authority ceases. But how little of this has appeared in the midst of the late obstructions of civil government! — nothing more than what has often happened in Great Britain and Ireland, in the face of the civil powers in all their strength; nothing more than what is frequently seen in the midst of the perfect regulations of the great city of London; and, may I not add, nothing more than has been absolutely necessary to carry into execution the spirited resolutions of a people too sensible to deliver themselves up to oppression and slavery. The judgment and advice of the continental assembly of delegates have been as readily obeyed as if they were authentic acts of a long-established Parliament. And in every colony the votes of a congress have had equal effect with the laws of great and general courts.

It is now ten months since(fn10) this colony has been deprived of the benefit of that government which was so long enjoyed by charter. They have had no General Assembly formatters of legislation and the public revenue; the courts of justice have been shut up,(fn11) and almost the whole executive power has ceased to act; yet order among the people has been remarkably preserved. Few crimes have been committed, punishable by the judge; even former contentions betwixt one neighbor and another have ceased; nor have fraud and rapine taken advantage of the imbecility of the civil powers.

The necessary preparations for the defence of our liberties required not only the collected wisdom and strength of the colony, but an immediate, cheerful application of the wealth of individuals to the public service, in due proportion, or a taxation which depended on general consent. Where was the authority to vote, collect, or receive the large sums required, and make provision for the utmost extremities? A Congress succeeded to the honors of a General Assembly as soon as the latter was crushed by the hand of power. It gained all the confidence of the people. Wisdom and prudence secured all that the laws of the former constitution could have given; and we now observe with astonishment an army of many thousands of well-disciplined troops suddenly assembled, and abundantly furnished with all necessary supplies, in defence of the liberties of America.

But is it proper or safe for the colony to continue much longer in such imperfect order? Must it not appear rational and necessary, to every man that understands the various movements requisite to good government, that the many parts should be properly settled, and every branch of the legislative and executive authority restored to that order and vigor on which the life and health of the body politic depend? To the honorable gentlemen now met in this new congress as the fathers of the people, this weighty matter must be referred. Who knows but in the midst of all the distresses of the present war to defeat the attempts of arbitrary power, God may in mercy restore to us our judges as at the first, and our counselors as at the beginning?

On your wisdom, religion, and public spirit, honored gentlemen, we depend, to determine what may be done as to the important matter of reviving the form of government, and settling all necessary affairs relating to it in the present critical state of things, that we may again have law and justice, and avoid the danger of anarchy and confusion. May God be with you, and by the influences of his Spirit direct all your counsels and resolutions for the glory of his name and the safety and happiness of this colony. We have great reason to acknowledge with thankfulness the evident tokens of the Divine presence with the former congress, that they were led to foresee present exigencies, and make such effectual provision for them. It is our earnest prayer to the Father of Lights that he would irradiate your minds, make all your way plain, and grant you may be happy instruments of many and great blessings to the people by whom you are constituted, to New England, and all the united colonies. Let us praise our God(fn12) for the advantages already given us over the enemies of liberty, particularly that they have been so dispirited by repeated experience of the efficacy of our arms; and that, in the late action at Chelsea, when several hundreds of our soldiery, the greater part open to the fire of so many cannon, swivels, and muskets, from a battery advantageously situated,—from two armed cutters, and many barges full of marines, and from ships of the line in the harbor, — not one man on our side was killed, and but two or three wounded; when, by the best intelligence, a great number were killed and wounded on the other side, and one of their cutters was taken and burnt, the other narrowly escaping with great damage.(fn13)

If God be for us, who can be against us? The enemy has reproached us for calling on his name, and professing our trust in him. They have made a mock of our solemn fasts, and every appearance of serious Christianity in the land. On this account, by way of contempt, they call us saints; and that they themselves may keep at the greatest distance from this character, their mouths are full of horrid blasphemies, cursing, and bitterness, and vent all the rage of malice and barbarity. And may we not be confident that the Most High, who regards these things, will vindicate his own honor, and plead our righteous cause against such enemies to his government, as well as our liberties? O, may our camp be free from every accursed thing! May our land be purged from all its sins! May we be truly a holy people, and all our towns cities of righteousness!

Then the Lord will be our refuge and strength, a very present help in trouble, and we shall have no reason to be afraid though thousands of enemies set themselves against us round about, — though all nature should be thrown into tumults and convulsions. He can command the stars in their courses to fight his battles, and all the elements to wage war with his enemies. He can destroy them with innumerable plagues, or send faintness into their hearts, so that the men of might shall not find their hands. In a variety of methods he can work salvation for us, as he did for his people in-ancient days, and according to the many remarkable deliverances granted in former times to Great Britain and New England when popish machinations threatened both countries with civil and ecclesiastical tyranny.(fn15)

May the Lord hear us in this day of trouble, and the name of the God of Jacob defend us, send us help from his sanctuary, and strengthen us out of Zion! We will rejoice in his salvation, and in the name of our God we will set up our banners. Let us look to him to fulfill all our petitions.”

About Samuel Langdon

This eminent man, celebrated alike for his piety and sterling patriotism, was born at Boston, Massachusetts. Through the exertions of his friends, who discovered in him a desire to obtain a liberal education, he was entered at Harvard College, from which institution he graduated with credit in 1740 (The same year in which Samuel Adams graduated). From college he went to Portsmouth, in Now Hampshire, where he was employed to take charge of a grammar school until 1745, at which time he was invited to preach in the First Church, as assistant to Mr. Fitch. Two years after, he was ordained, and from this time until the commencement of the difficulties between England and her colonies, he continued an active laborer for the cause of the church.

Dr. Langdon was a very zealous Whig. His bold and open opposition to the measures of the British government, rendered him highly acceptable to the patriots of New England, and through the influence of John Hancock and others, he was, in 1774, installed as successor of Mr. Locke in the presidency of Harvard College. When he took the chair it gave great delight to the sons of liberty; and in 1775, a month after the commencement of the war, he was chosen to preach the election sermon, as seen above. After an able administration, in a period of peculiar embarrassment, he resigned the presidency of the college.

President Langdon’s connection with the college did not prove of the most satisfactory character. His administration was a perpetual struggle with difficulties and embarrassments, amid the dangers of civil war and the excitement of a political revolution. He wanted judgment, and had no spirit of government. He did not receive that respect and kindness from the students and others connected with the college, that were due his character as a scholar and a Christian. Under these circumstances he resigned the presidency, and in 1781, became the pastor of a church at Hampton Falls, near Portsmouth, New Hampshire. In 1788 he preached the election sermon at Concord, and the same year occupied a seat in the New Hampshire Convention, in which body he took an active part, and had an extensive influence in removing the prejudices which prevailed against the Federal Constitution, and was prominent in securing the adoption of it. At the age of seventy-four, on the twenty-ninth of November, 1794, he closed a life well spent, beloved for his piety, hospitality, and good-will to his fellow-men, revered for his private and public life.


(fn1) Mr. Sabine’s learned “Report on the Principal Fisheries of the American Seas,” 1833, is an invaluable contribution to American history. It is essential to a correct knowledge of American colonization, and of much of our subsequent history.

(fn2) Mr. Frothingham presents the results of an able and conscientious study of these events in his ” History of the Siege of Boston,” — ” The best of our historic monographs.”— Bancroft in Allibone. See also Mr. Henry B.Dawson’s elaborate pages in “The Battles of the United States.”

(fn3) Rev. Isaac Mansfield, Jr., chaplain to General Thomas’s regiment, in his Thanksgiving Sermon ” in the camp at Roxbury, November 23, 1775,” says of the event of April 19th: “What but the hand of Providence preserved the school of the prophets from their ravage, who would have deprived us of many advantages for moral or religious improvement?” To this he adds the note following: ” General Gage, as governor of this province, issued his precepts for convening a General Assembly at Boston, designing to enforce a compliance with Lord North’s designing motion; they were to be kept as prisoners in garrison, till, under the mouth of cannon and at the point of the bayonet, they should be reduced to a mean and servile submission. To facilitate this matter, he was to send out a party to take possession of a magazine at Concord. Presuming that this might be done without opposition, the said party, upon their return from Concord, were to lay waste till they should arrive at Cambridge common; there, after destroying the colleges”— seminaries of sedition — ” and other buildings, they were to throw up an entrenchment upon the said common, their number was to be increased from the garrison, and the next morning a part of the artillery to be removed and planted in the entrenchment aforesaid. This astonishing manoeuvre, it was supposed, would so effectually intimidate the constituents, that the General Assembly, by the compliance designed, would literally represent their constituents.’ The author is not at liberty to publish the channel through which he received the foregoing, but begs to assure the reader that it came so direct that he cannot hesitate in giving credit to it. He recollects one circumstance which renders it highly probable: Lord Percy (on April 19), suspicious his progress to Concord might be retarded by the plank of the bridge at Cambridge being taken away, brought out from Boston several loads of plank, with a number of carpenters; not finding occasion to use them, he carried them on his way to Concord, perhaps about a mile and a half from the bridge; about an hour after the plank were returned. If he had intended to repass that river at night, he must have reserved the plank; if he designed to stop in Cambridge, the plank must be an encumbrance. This conduct, in returning the plank, may be accounted for upon supposition of the foregoing plan of operation.”

(fn4) Near the meeting-house in Menotomy (now West Cambridge) two aged helpless men, who had not been out in the action, and were found unarmed in a house where the regulars entered, were murdered without mercy. In another house in that neighborhood, a woman in bed with a new-born infant—about a week old—was forced by the threats of the soldiery to escape almost naked to an open outhouse; her house was then set on fire, but was soon extinguished by one of the children which had lain concealed till the enemy was gone. In Cambridge a man of weak mental powers, who went out to gaze at the regular army as they passed, without arms, or thought of danger, was wantonly shot at, and killed by those inhuman butchers, as he sat on a fence.

(fn5) “Governments are instituted among men, deriving their just powers from the consent of the governed; …. it is the right of the people to alter or abolish it, and to institute a new government, laying its foundations on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.”—Dec. of Ind., July 4th, 1776.

(fn6) Mr. Burke, in his “Thoughts on the Present Discontents,” 1770, said: “The power of the crown, almost rotten and dead as prerogative, has grown up anew, with much more strength, and far less odium, under the name of influence,” intrigue, and favoritism; and a few years later he refers to the “not disavowed use which has been made of his Majesty’s name for the purpose of the most unconstitutional, corrupt, and dishonorable influence on the minds of the members of this Parliament that ever was practiced in this kingdom. No attention even to exterior decorum,” etc.

(fn7) This contemporary observation of the English government of that period shows the watchful eye of the colonists on the administration; and by it we can better appreciate their masterly conduct of public affairs, and their superiority over the British statesmen. England knew not her colonists, but she was known of them.

(fn8) One apology for this bad faith was, that if only Tory interests remained in Boston the patriots would fire the town. It occasioned extreme anxiety and suffering. — Frothingham, 93-90

(fn9) Soon alter the battle at Concord, General Gage stipulated, with the selectmen of Boston, that if the inhabitants would deliver up their arms, to be deposited in Fanuell Hall, and returned when circumstances would permit, they should have liberty to quit the town, and take with them their effects. They readily complied, but soon found themselves abused. With great difficulty, and very slowly, they obtain passes, but are forbidden to carry out anything besides household furniture and wearing apparel. Merchants and shopkeepers are obliged to leave behind all their merchandise, and even their cash is detained. Mechanics are not allowed to bring out the most necessary tools for their work. Not only their family stores of provisions are stopped, but it has been repeatedly and credibly affirmed that poor women and children have had the very smallest articles of this kind taken from them, which were necessary for their refreshment while they traveled a few miles to their friends; and that even from young children, in their mothers’ arms, the cruel soldiery have taken the morsel of bread given to prevent their crying, and thrown it away. How much better for the inhabitants to have resolved, at all hazards, to defend themselves by their arms against such an enemy, than suffer such shameful abuse!

(fn10) Since July 17, 1771, when the General Court at Salem closed the door against the secretary sent by Governor Gage to dissolve the Assembly, chose Thomas Gushing, Samuel Adams, Robert Treat Paine, James Bowdoin, and John Adams, delegates to a congress of the colonies, passed resolves, and separated. — Ed.

(fn11) The power of public opinion in preserving order and safety during the period from the time when the king’s courts and magistrates — all legal authority — ceased to act, till the accession of constitutional authority,— a phenomenon which excited the admiration of the world, — is finely illustrated in Mr. Freeman’s account of the proceedings in Barnstable county, “on the first Tuesday of September,” 1774. As there might be appeals from the Court of Common Pleas to the Superior Court, the Chief Justice of which, Hutchinson, had accepted a salary from the crown, the people suppressed the sessions of that court throughout the province, except in Boston, where they were not in power. Fifteen hundred of the people of Barnstable, Plymouth, and Bristol counties, thoroughly organized, met in front of the court-house, at Barnstable, and, through their conductor-in-chief, Dr. Nathaniel Freeman, of Sandwich, addressed Colonel Otis, the venerable Chief Justice: . . . “Our safety, all that is dear to us, and the welfare of unborn millions, have directed this movement to prevent the court from being opened or doing any business. We have taken all the consequences into consideration; we have weighed them well, and have formed this resolution, which we shall not rescind.” The Chief Justice then calmly but firmly replied: “This is a legal and a constitutional court; it has suffered no mutations; the juries have been drawn from the boxes as the law directs; and why would you interrupt its proceedings?—why do you make a leap before you get to the hedge?” Dr. Freeman responded: “All this has been considered. We do not appear out of any disrespect to this honorable court, nor do we apprehend that if you proceed to business you will do anything that we could censure. But, sir, from all the decisions of this court, of more than forty shillings’ amount, an appeal lies; an appeal to what? — to a court holding office during the king’s pleasure, —a court over which we have no control or influence, — a court paid out of the revenue that is extorted from us by the illegal and unconstitutional edict of foreign despotism, —and there the jury will be appointed by the sheriff. For this reason we have adopted this method of stopping the avenue through which business may otherwise pass to that tribunal, — well knowing that if they have no business they can do us no harm.” The Chief Justice then said: “As is my duty, I now, in his Majesty’s name, order you immediately to disperse, and give the court the opportunity to perform the business of the county.” Dr. Freeman replied: “We thank your Honor for having done TotK duty: We Shall Continue To Perform Ours.” The court then turned and repaired to the house where they had put up. This was supposed to be the first overt act of Treason, done deliberately, in the face of day. The solemnity and sense of right which governed the people, and which was a characteristic of the revolutionary period, was grandly exhibited in their code of regulations adopted on this occasion. We give their own words:

“Whereas a strict adherence to virtue and religion is not only well pleasing in the sight of Almighty God, and highly commendable before men, but hath a natural tendency to good order, and to lead mankind in the paths of light and truth:

“Therefore, Resolved, That we will . . . avoid all kinds of intemperance by strong liquors, and no otherwise frequent the taverns than for necessary entertainment and refreshment; that we will not swear profanely, or abuse our superiors, equals, or inferiors, by any ill or opprobrious language; that we will not invade the property of any, or take of their goods or estate without their leave or consent; that we will not offer violence to any persons, or use any threatening words, otherwise than such as shall be approved of and accounted necessary by our community for the accomplishing the errand we go upon; and that we will carefully observe an orderly, circumspect, and civil behavior, as well towards strangers and all others as towards those of our own fellowship.

“Resolved, That Messrs. Aaron Barlow, Nathaniel Briggs, James Foster, Joseph Haskell, 3d, John Doty, Judah Sears, Jr., Stephen Wing, and John Pitcher, be a committee to hear and determine all offenses against morality, decency, and good manners, that shall be complained of, . . . with power to call before them, examine, acquit, or punish, according to the nature and circumstances of the offence

“Resolved, That we will, during the time of our said enterprise, aid, protect, and support our said committee in the full and free discharge of their duty and office, and use our most careful endeavors for the punishment of all offenders.

“And, forasmuch as these our public transactions are of a public nature, and, as we apprehend, laudable; and as we have no private interest to serve, or anything in view but the good of our country and its common cause:

“Therefore, Voted, That these resolves be read once every day, at some convenient time and place, during our transitory state and temporary fellowship, — so that our righteousness may plead our cause, and bear a public testimony that we are neither friends to mobs, or riots, or any other wickedness or abomination.

“And, lastly, we Resolve, That we will yield all due respect and obedience to those persons whom we shall choose and appoint for our officers and leaders,” etc.— ” History of Cape Cod,” by Rev. Frederick Freeman, Boston, 1860; a work of great value and interest, of which chapters xix. xx. are additional to previous materials, and supply a passage in the moral history of the people the most difficult to be preserved.

Mr. Burke, in March, 1775, reflecting on this singular spectacle of a people remaining in perfect order without a public council, judges, or executive magistrates, said: “Obedience is what makes government, and not the names by which it is called; not the name of governor, as formerly, or committee, as at present.”

(fn12) Governor Gage, in his proclamation of June 12,1775, a few days after Dr. Langdon’s sermon was preached, said: “To complete the horrid profanation of terms and of ideas, the name of God has been introduced in the pulpits to excite and justify devastation and massacre.”

(fn13) This action was in the night following the twenty-seventh current, after our soldiery had been taking off the cattle from some islands in Boston harbor. By the best information we have been able to procure, about one hundred and five of the king’s troops were killed, and one hundred and sixty wounded, in the engagement.(fn14)

(fn14) Frothinghatn, pp. 109, 110, says this was magnified into a battle, and dwelt upon with great exultation throughout the colonies. The loss of the enemy was probably exaggerated. — Gordon, Letter xiv.

Mr. Mansfield, in his Thanksgiving Sermon at Roxbury, November 23, 1775, said: “Providence has likewise smiled upon the camp, in permitting so few fatal accidents, and evidently been its safeguard.” He says: “I am informed that by means of upwards two thousand balls that have been thrown from the opposite lines, five men only have been taken off.

(fn15) When we consider the late Canada Bill, which implies not merely a toleration of the Roman Catholic religion (which would be just and liberal), but a Arm establishment of it through that extensive province, now greatly enlarged to serve political purposes, by which means multitudes of people, subjects of Great Britain, which may hereafter settle that vast country, will be tempted, by all the attachments arising from an establishment, to profess that religion, or be discouraged from any endeavors to propagate reformed principles, have we not great reason to suspect that all the late measures respecting the colonies have originated from popish schemes of men who would gladly restore the race of Stuart, and who look on Popery as a religion most favorable to arbitrary power? It is a plain fact that despotism has an establishment in that province equally with the Roman Catholic Church. The governor, with a council very much under his power, has by his commission almost unlimited authority, free from the clog of representatives of the people. However agreeable this may be to the genius of the French, English subjects there will be discouraged from continuing in a country where both they and their posterity will be deprived of the greatest privileges of the British constitution, and in many respects feel the effects of absolute monarchy.

Lord Littleton, in his defence of this detestable statute, frankly concedes that it is an establishment of the Roman Catholic religion, and that part of the policy of it was to provide a check upon the New England colonies. And the writer of an address of the people of Great Britain to the inhabitants of America, just published, expresses himself with great precision when he says ” that statute gave toleration to English subjects.”

I perceive likewise that by means of about three hundred balls, etc., thrown into this place”— Roxbury — “in the course of one month, viz., from September 3 to October 3, but two were wounded (one but slightly; the other died, after some time, of his wound), and no man was immediately killed. It is to be remarked further, that not one person was hurt, in the course of above three hundred shells being thrown to a fortress erected upon Ploughed Hill,” in Charlestown.

RIGHTS OF AMERICAN CITIZENS: The mode of obtaining redress for infringement of civil or political rights

bill-of-rightsThe Rights of an American Citizen: With a Commentary on State Rights, and on the Constitution and Policy of the United States by Benjamin Lynde Oliver published 1832


CHAPTER VII: Of the mode of obtaining redress for any infringement of civil or political rights, committed either by the officers of the General Government, or of any of the State Governments.

InfringedUnder a frame of government voluntarily adopted by the people;—under laws for the protection of the rights of the citizens, enacted by legislators of their own choice, and executed by public officers, whose offices, either directly or indirectly, depend also upon the choice of the people, and who, at any rate are responsible to them for any neglect of duty or other official malversation [misconduct in public office], it would be incongruous to suppose, that any of the civil or political rights of the citizens could be infringed by the public officers themselves, either with impunity to the transgressor, or without ample means of obtaining adequate redress to the injured party. And, it is true, that the people of the United States, in the frame of the General Government, as also in those of the respective state governments, have endeavored to make ample provision against such evils, by defining, with as much precision as the nature of the case would admit, the duties of all the public offices, which they have thought fit to create, and by restricting the powers of the officers, to such only as are absolutely necessary to the faithful and effectual discharge of those duties. This remark applies equally to the highest, as well as to the humblest offices and officers in the government. Within the limits of their respective powers, all officers, from the President of the United States, downwards, ought to be submitted to and obeyed; but, if they should overstep the limits of their official authority;—if they should usurp powers not delegated to them by the constitution, or by some law made in pursuance of it, they would cease to be under the protection of their offices, and would be recognized merely as private citizens; and, for any act of injustice or oppression which they might commit, would be liable to a civil or criminal prosecution, in the same manner as a private citizen; with this distinction, that if the wrongdoer has availed himself of his official character, or, of the opportunities which his office affords him, to commit acts of injustice or oppression, it will be considered as a great aggravation of his guilt, in a criminal prosecution, and will be a ground for the jury to find exemplary damages, in a civil action. Because, private injury is here connected with an abuse of the public confidence.

So far as the subject of the present chapter is concerned, such is believed to be the true intention, and theory of the Federal Government, as well as of that of each of the states. And where the wrongdoer is a public officer, to whose office the exercise of political power is not attached, there can seldom be any difficulty in obtaining redress for any wrong done by him. A resort to the tribunals of justice, either of the states, or of the United States, according to circumstances, will usually be sufficient for this purpose.

JudicialActivismCases however are occurring frequently, in some of which the means of redress are not sufficiently easy, or do not seem adequate to the purposes of justice, and, in others, which however it is a consolation to think are much more rare, it seems difficult to say with certainty in what manner and to what extent, a person injured, may find a remedy for the wrong which he suffers.

1. Suppose one of the states should enact an unconstitutional law, forbidding under very heavy penalties an act which, before the enactment of the law, was entirely innocent; suppose that a citizen of another state should happen to be the victim of such law, being apprehended within the territory of the former state, and violating such unconstitutional law, and tried, sentenced, and imprisoned under it; this, without question,would be a great hardship upon him: but what remedy can he have? It may be answered here, that, according to the true theory of the federal system, there should be no difficulty at all in this case; because, in the first place, the judges of the state court before whom such prisoner would be brought for trial, would have full authority as well as a perfect right, to decide the law to be unconstitutional, if they thought so, and to discharge the prisoner. But, if the same considerations which induced the legislature of such state to enact the law, or any others, should induce the judges of the court to decide, that the law was constitutional, the prisoner would have a right to bring his case before the Supreme Court of the United States, by a writ of error, and the judges of that court, if they considered the law .unconstitutional, would reverse the decision of the State Court and would issue a mandamus accordingly. If the State Court disregarded the decision or mandate of the Supreme Court of the United States, and, on a second writ of error, that court should attempt to execute its own decree and the execution of it should be resisted by the State Government, and the marshal of the district should be unable to raise a sufficient force to release the prisoner,—it would then become the duty of the president to interpose; because the constitution of the United States makes it his duty ‘to take care that the laws are faithfully executed.’ If he should omit to do this, he would violate his oath. If the president should avow the doctrine, that a president is under no obligation to execute any law, which he does not think constitutional, and should declare that he did not think such decision to be so, and therefore should not assist in executing it, it would seem to be a great usurpation of power; because, under this pretense he might refuse to execute any law, which did not please him, even though it were sanctioned by the votes of two thirds of the senate and house of representatives. In any such case, he might well be impeached for neglect of duty, from whatever cause it might arise; because, it would become useless for congress to enact laws, if the president would not do his duty in the execution of them, where it required a greater power for that purpose than the marshal could raise. This is the very case particularly contemplated in the constitution, where it requires the president to take care that the laws are faithfully executed. If however a majority of the house of representatives would not agree to an impeachment, the subject must be left to the decision of the people at the next election for president; and, if he should then be re-elected, his doctrine would be sanctioned, and the effect of it would be, to alter the frame of government from a republic to an elective monarchy, the term of office being four years, renewable at the will of the people. The president would then virtually have an unqualified veto upon all laws; because, no state could be compelled to submit to any law, which was passed without the president’s sanction, though by two thirds of congress. Such an unqualified veto is a greater power, than any but kings pretend to claim, and would render the provisions of the constitution on this subject useless. In fact the constitution would become like some ill-contrived instrument, which has strength enough to overcome inconsiderable obstacles, but, when opposed to any weighty ones, flies off the handle. Rational liberty and good order, under a government of laws, would then become a mere farce; and is there not danger, that it might be followed, in the inverse order of theatrical representations, by the tragedy of revolution, anarchy, and military despotism?

Judicial ActivismA case, where the citizens of one or more of the states should be oppressed by an unconstitutional law of another state, after the Supreme Court of the United States had decided such law to be unconstitutional, one would naturally suppose to be too improbable to deserve a moment’s consideration; since, in general, it is matter of boast, that, in no country in the world, are the rights of the citizens better protected than in the United States. Yet, in what respect does this imaginary case differ from that of the two American citizens now imprisoned in the state of Georgia? These citizens, at the time of the passage of the unconstitutional law alluded to, were residing within the Cherokee Territory; and because they continued to reside there without complying with the requirements of a certain act of the state of Georgia, which the Supreme Court has decided to be unconstitutional, they are sentenced to hard labor in the penitentiary, or state prison, of that state, for four years; and notwithstanding such decision of the Supreme Court, they are still detained in ‘durance vile,’ among malefactors and felons. This seems to be a case of peculiar hardship upon these citizens. For, they depended on the laws and constitution of the United States for protection, and have committed no crime; yet they are not protected. It seems singular, that though Congress was in session when the decree of the Supreme Court of the United States was pronounced, and received notice that the decree would not be obeyed, and knew, that, owing to the adjournment of the Supreme Court, which sits only once a year, these persons can have no relief by the intervention of that court, until the next session, yet they did not adopt any measures to procure the release of these persons from imprisonment. It seems singular, too, that though Congress must be aware of the intention of the state of Georgia, not to obey the decree, nor to suffer it to be executed by the Supreme Court, which, having no political power, in all probability will not be able of itself to execute its own decree in this case,, should have adjourned without coming to any resolution on a subject, in which the honor of the United States seems concerned. It is true, some may imagine, that, by this delay, a collision with the state of Georgia may probably be avoided, because, it is not improbable, that the hardships of imprisonment, might induce the prisoners to make concessions, and petition for their pardon and release. But, if they should adopt this course, and should actually be pardoned upon their submission, it would stamp indelible disgrace upon the Union; because it would then be apparent, that though they were citizens of the United States, and had committed no crime, yet the government either could not or would not protect them; and, besides being unjustly punished, these persons would be obliged to succumb to their oppressors, in order to obtain their release before the whole term of their imprisonment expires. A temporizing policy is sometimes prudent, wise and humane, but never can be honorable when it is at the expense of an injured person, who is suffering imprisonment, disgrace, ignominy, and other hardships, by the delay.

2. Another class of cases, but of a totally different kind, in which injury may be inflicted by persons in authority, and where the remedy is not always so easy, as it is desirable it should be, is where a military commander avails himself of the force under his command, and the discipline of the camp, and the habits of implicit obedience of his troops, to commit acts of oppression upon the citizens. Such oppression may be practiced in a great variety of ways; as, by seizing upon supplies without necessity, and in an arbitrary manner not warranted by law; by quartering his troops upon the people in a manner, which the law does not permit; by not restraining his troops from ill-treating the people, and committing gross irregularities or excesses among them; by abusing the power, which the force under him, enables him to exercise, by declaring and enforcing martial law, to the disturbance of the jurisdiction of the civil tribunals, and to the oppression of the citizens, without any legal authority whatever; by arresting and imprisoning or sending away the citizens, without any justifiable cause. Recruiting officers also, sometimes, are guilty of oppressive acts in the fraudulent enlistment of persons under age, and by taking an unfair advantage of persons, whom they have found in a state of intoxication, or have entrapped into it. In most, if not all of these cases, the law provides a remedy, but it is not always effectual; for, the military commander will sometimes set the process of the courts at defiance, at least for a time, by means of the force under his command. Besides, the remedy is not sufficiently speedy, being designed rather to give damages, or to punish for an injury, than to interpose, and prevent its infliction or continuance. Acts of oppression are also sometimes committed by courtsmartial, either from a mistake of their proper jurisdiction, or some other less excusable motive. In any such case, however, the sentence of the court will be no protection to the officer who executes it, but the court and the officers will all be trespassers, and an action may be maintained against them as such. See Cranch, 330.

But there is reason to apprehend, that persons not liable to be tried by martial law, may sometimes be punished, and even capitally, by the sentence of a court-martial, which has no legal authority. In this case what is to be done? In Dec. 16,4814, General Jackson proclaimed martial law at New Orleans, and expressed his determination rigidly to enforce the articles of war. The effect of any such illegal measure would naturally be, to make the private citizens, who neither belonged to the army nor were embodied in the drafted militia, liable to be tried by a court-martial, and in some cases punished capitally for offenses against a law, designed only for the regular army and the militia in actual service. See also the case of Stacey, Infra.

3. Another class of cases, where the citizens might be oppressed, without having any sufficient, prompt remedy, redress or reparation, would result from an oppressive exercise of the power of committing for contempts, by either house of congress, or of the state legislatures; or, by any of the tribunals of justice.

So far as it relates to contempts of court, offered by persons, who are neither officers of court, suitors nor witnesses, and committed out of the presence of the court, there does not seem to be any settled law, in the courts of common law. It would be well, if any such power were disclaimed by the courts, so that the statute of the United States might be considered as declaratory of the law recognized in the state courts, on this subject; and, in case any act were committed, tending to bring the administration of justice into contempt, the guilty person were proceeded against by way of indictment for misdemeanor.

With regard to witnesses, as the law is settled, that the court may commit to prison, any witness who refuses to testify or to answer what the court consider a legal question; and, as different judges may and do entertain very different opinions as to the legality of the same questions; and, if a witness should be thus compelled to answer a question, which in fact is illegal, it does not appear how he can avoid the ill consequences which may arise,—it might not be amiss to make some legislative provision on the subject, so that the law may be certain, and as little as possible left to the discretion of the presiding judge.

For an abuse of the power of committing for a contempt, by a court of competent jurisdiction, however arbitrary, and oppressive in its effects, it does not appear, that a party injured can have any redress, unless express malice can be proved, and the total want of probable cause or legal grounds for the commitment. The justices of inferior tribunals indeed may be indicted for such oppression, and there seems to be no sufficient reason, why those of the superior courts should not be liable to similar prosecutions, in case of express malice and gross abuse of power. But the judges of courts in general are not to be called to account for what they do, acting judicially within their jurisdictions, however incorrect and mistaken their opinions may be. In the case of Charles Knowles, who was indicted before the King’s bench for murder, he pleaded that he was Earl of Banbury. The attorney general, replied that he had on a former occasion claimed the privilege of peerage before the house of peers, but they had dismissed his petition. The defendant demurred, and the court sustained the demurrer and quashed the indictment. This was considered as an infringement of the privileges of the house of lords. Ch. Jus. Holt, being called before the house of lords, and desired to give an account of the reasons of the proceedings of the court in that case, answered: ‘I gave judgment as it appears on the record. It would be submitting to an arraignment for having given judgment, if I gave any reasons here. I gave my reasons in another place at large.—

‘I am not to be arraigned in any way for what I do judicially. The judgment may be arraigned in a proper method, by writ of error. I might answer, if I would, but I think it safest for me to keep myself under the protection the law has given me. I look upon this as an arraignment; I insist, if I am arraigned, I ought not to answer.’ 12 St. Fr. 1179.

But an abuse of the power of committing for contempts, may be the ground of an impeachment. This subject was much discussed in the impeachment of Judge Peck; and it was thought expedient to declare the law on the subject, by statute. See ante, p. 240. It may not be amiss to remark here, that the courts, both in England and in this country, claim and exercise the power of suspending attorneys and counselors, from practice in their courts, either for professional misbehavior, or for gross contempts. An alleged abuse of this power, was one of the grounds of impeachment in the case of Judge Peck. How far the courts have a power to suspend counselors from practice, for a contempt, in those states where the people, by statute law, have a right to appoint whom they please, to prosecute and defend for them, by a special power of attorney, does not seem clear. It seems doubtful, whether the court can deprive the people of their statute privilege in this respect, by any mere act of their own, even though the contempt should be so gross as to deserve fine and imprisonment. In the trial of John P. Zenger, a printer of New York, in the year 1735, for a libel against the government, his counsel, James Alexander and William Smith, excepted to the power of the Ch. Justice, James de Lancey, to sit in the cause, on account of alleged informality in his commission, in various respects, especially, because it was granted, during the king’s pleasure, instead of during good behavior. The court intimated to them what they intended should be the consequences of making such exceptions, but they persisted in filing them; the court then immediately struck them off the roll of attorneys and excluded them from their whole practice as attorneys and counselors, and would not even suffer them to take minutes of the trial in writing. This was an unwarrantable abuse of power, against men, who had done nothing. more than urge an embarrassing exception to the validity of the Ch. Justice’s commission.(fn1)

But on this subject, further remarks are superfluous, as it is believed, few cases will ever arise, which will make it necessary to draw any lines, more distinct than those, which seem to be understood and observed throughout the courts of the United States; as well as those of the respective states; viz. friendly indulgence on the part of the court, and respectful consideration on the part of the bar.

With regard to the remedy, if either house of congress, or, the senate or house of representatives or delegates of either of the states, should oppress a private citizen, by committing him to prison under pretext of a contempt, when he had been guilty of none, and perhaps in fact had done nothing more than exercise his legal right, the law does not seem settled. See ante p. 248, Sic. In England, the law in general seems clear, that either house of parliament has the exclusive cognizance of its own privileges, and consequently of all contempts against itself; so that, whatever the opinion of the court of king’s bench may be on the subject, the judges have no power to discharge the person in contempt, from imprisonment. See infra, under habeas corpus. A few remarks have already been made on this subject in a different connexion.

See ante, p. 240, &c., in which it is contended, that no such unlimited power is possessed by either house of congress, and whether the legislature of any particular state, or either branch of it, possesses such power, must depend upon the proper construction of the constitution of such state. If a case of oppression by the abuse or usurpation of such power, by either house of congress, should ever arise, it would be most agreeable to the spirit of the federal constitution, to consider the supreme court as having full power to decide according to the constitution, the law, and natural right, and consequently having authority to discharge the prisoner from his illegal and unconstitutional imprisonment. For, the analogy between the relations existing between the court of king’s bench and parliament, in England on one side; and between the supreme court of the United States and congress, on the other, does not hold good in all particulars. The difference is, that the court of king’s bench is an inferior court, not only to the high court of parliament, but to each of the houses of parliament, when sitting as a court, for the decision of questions in relation to its own privileges, in which case, it is a court of record. But the supreme court of the United States, is the highest tribunal, acknowledged by the constitution, for the decision of constitutional questions, and cannot be controlled by congress in any other way, than by altering the law, for the time to come, by legislative acts made agreeably to the constitution. The right of defining their own privileges, therefore ought to be exercised by statutes. The liberties of the citizens would then be secure, because both houses of congress must concur to enact a law, and it must have the sanction of the president. Even then, however, it must be agreeable to the constitution, or it will be void; and the supreme court of the United States has jurisdiction to determine it to be so. But, if each house of congress has the power to determine its own privileges, whenever a case arises, without any previous law, by a decision, which, whether constitutional or not, must be submitted to without a right to appeal to the supreme court, then such declaration of their rights by one of the houses of congress, and without the ratification of the other, or the president’s signature, will have more power than a statute of the United States, regularly enacted by both houses of congress, and ratified by the president. Besides, if congress, or either house, have such an unqualified ‘power of declaring their own privileges, and of .punishing for contempts, without revision by another tribunal, then they are in effect above law, and consequently without law, and possess the omnipotence, as it is called, of the British parliament. The consequence may be, that, under the specious pretext of punishing for contempts, which in fact may only be committed in resisting usurped and unconstitutional privileges, they may destroy the freedom of the press, and with that, every other civil and political right, by oppressing all those, who venture to exercise such rights, in an unacceptable manner. The same arguments apply by way of analogy, to the legislatures of the states, and the supreme courts of such states, respectively. In this way, by considering such courts as having authority to examine into the nature of the contempts alleged as causes of commitment, and to discharge the prisoner, when the causes are insufficient, there will remain no room for the practice of oppression, against which there can be no remedy. See further on this subject Infra; in this chapter.

4. From the government itself, though bound to show a parental regard to the rights and interests of the people, the protection of which is the principal ground of its establishment, individuals or certain classes of the citizens, sometimes suffer, what they feel to be a hardship, but, which coming from their rulers, they are unwilling to think an act of absolute injustice. This is seldom done by the direct infliction of wrong; but, when it happens, most usually consists in delaying the hearing, allowance or adjustment of the claims of the citizens, either of which must be considered a denial of right. Those American merchants who have claims for spoliations, committed by France previous to 1800, in satisfaction of which, when proved in the manner stipulated in the conventions made between France and the United States, the French government agreed, that a sum not exceeding twenty millions of francs, might be reserved by the government of the United States, out of the purchase money to be paid for the purchase of Louisiana, but which claims have not yet been settled, consider themselves as suffering a hardship of this kind. From the lapse of time, many of those merchants, whose property was thus confiscated or condemned by France, have now deceased. In the same way, probably, has resulted the loss of many of their documents and papers; so that the establishment of their claims becomes every day more difficult. The families of some of these claimants, also, are reduced to indigence; and, though the government will probably soon be compelled to reduce its revenue, for want of some constitutional mode of expenditure, yet these claims are not paid or allowed, and indeed have never been heard any further than by petition and remonstrance, not finally acted upon.

This delay occasions another hardship to these claimants in this, that so many political generations of members of congress have succeeded each other, during the interval between the convention with France and the present day, that those, who are now members, do not seem so well acquainted with the equity of these claims, and do not seem to feel so much sympathy for the claimants, as might naturally be expected. For, a certain member, it is said, has expressed an opinion, that he should not vote that the whole of these claims be allowed. Why not? Is this sound doctrine? It cannot be supposed, that he meant, that the merchants should be allowed no more than they furnished reasonable evidence to prove. For, that is the whole of what they claim. But, after the claim is proved, what distinction can be made between the part to be allowed, and the part to be rejected? The rule must be to pay so much as is satisfactorily proved, and no more. For, congress has no right, either to bestow money upon the merchants on a groundless claim, or to withhold any part of what is justly due to them. It is hoped, that no member of congress, can have so degrading an opinion of his constituents, as to suppose, that the allowance of the whole of a just claim can be unpopular with them; for what is this, but to suppose, that they are actuated by the low envy, which illiberal minds are prone to indulge, at seeing a large sum paid to others, though it is justly their due? For, a disapprobation of the allowance of any just claim, can be imputed to no better motive.

5. It may not be amiss to remark, though in strictness it does not fall within the subject of this chapter, that the peaceable citizens do not always seem to have adequate protection against the disorders and outrages of mobs and rioters. There is hardly a year passes, that complaints are not made, in some place or other within the United States, of injuries done to the property of individuals by disorderly assemblies of ignorant and profligate persons. It is true, they sometimes are actuated by a desire to reform abuses, to remove nuisances, to right the injured, and to punish wrong doers; but, notwithstanding these chivalric intentions, their proceedings, which are nothing better than acts of violence and disorder, are not only illegal but highly criminal. For, the law has provided a regular course of proceedings for the correction and reform of all abuses, and has appointed police officers both capable and trustworthy, who will perform all such duties in a regular and proper manner; so that there is never any occasion for the assistance of mobs, which are proverbially cruel, faithless, rash and cowardly. Those persons, who are fond of acting in their own person, though without a legal warrant, in the reform of abuses by summary process, should be informed, that as their conduct is unlawful, if any person should unfortunately be killed in resisting their acts, it will be murder, not only in the immediate killer, but in all who have assembled with a design to carry their attempts into execution, by force. For, the rule of law is settled,’that if two, three or more are doing an unlawful act, as abusing the passengers in a street or highway, and one of them kills a passenger, it is murder, in all.’ See the opinion of Ch. Jus. Holt, 12 Mod. 156. For the same reason, when Ld. Dacres and some others, went into a park to hunt, and agreed to kill all that should resist them, and one of them in the absence of Ld. Dacres, and when he was a quarter of a mile off, killed a person who asked him ‘what business he had there,’ it was adjudged murder, in all; and Ld. Dacres was hanged. Kelyngs’ R. 87.

There is frequently too great indulgence shown by the magistrates to tumultuous assemblies of profligate persons. To suppress them, at once, on the first appearance of disorder and irregularity, by arresting their ringleaders, and, where necessary, by exhibiting to them a force which they dare not look in the face, is the best policy; because it is not only a decisive step, but it is also the most humane that can be adopted. For, mobs and rioters are almost always encouraged in their outrages, by the forbearance of the police, which they generally ascribe to timidity. And thus the magistrates, who perhaps, at the beginning of the tumult, thought it too harsh a measure, to send a disorderly individual to prison, have afterwards been compelled, in self-defence, to shed his blood, and perhaps that of others beside.

Such disturbances of the public peace, perhaps may sometimes be ascribed in part to the prevailing influence of erroneous opinions; and because, according to the democratic theory, the supreme power in the last resort, belongs to the people, an assembly of ignorant and profligate persons, under pretence of being the people, will think themselves justified in whatever excesses or outrages they may commit. It is probably from the supposed toleration and impunity of such licentiousness, that Democracy is so great a favorite with such persons. But no regular government can be safe for a moment, if those who entertain such erroneous notions, and bad principles, should ever obtain a commanding influence in society, whether through the force of terror or delusion. Cataline, Caesar Borgia, Masaniello, Jack Cade, fee. are the only ones, who can expect to be popular with disorderly persons of such principles, and, if not put down in season, society must suffer the horrors of revolution and anarchy.

But, in fact, even the magistrates themselves seem sometimes to labor under the delusion, that a multitude of disorderly and riotous persons are the people, and therefore are not to be restrained in any excesses or breaches of social order, that do not amount to enormous outrage. But in fact, such persons are not the people, and have no greater claim to that appellation, than an equal number of convicts from the state prison. For, the convicts are punished for violations of social order, committed individually, and for the most part, in secret. And such flagitious persons are actuated by the same motives, but they are more dangerous, because they act in greater numbers, and set the regulations of society at open defiance.

In order to ascertain, who are the people, it is only necessary to consider by whom are the constitutions of society established —under whose authority laws are enacted. The legislators and magistrates are the ministers of the people; and the laws are enacted by persons chosen by the people. The laws and constitution are therefore the declared will of the people, and those persons who oppose either the laws, the constitution, or the magistrates, whether such persons are demagogues, or whether they are the ignorant or profligate attendants upon demagogues, are the enemies of the people, and disturbers of the public peace. But, if such persons were the people, indeed, and the sovereign power were lodged in their hands, then of all governments, democracy would be the most arbitrary and tyrannical, and, at the same time the most degraded and base.

As individuals who are injured in their persons or property, by unlawful assemblies of rioters, frequently are unable to obtain any redress, because of the disguises which are used on such occasions, it would be good policy to give them a remedy by action, against the town in which the outrages are committed, for the full amount of damages sustained, and to let the towns have a remedy over against the rioters. This responsibility for the misbehavior of others, would induce the orderly and peaceable inhabitants of towns, to provide an efficient police, that would put an immediate stop to every species of tumultuous assembly or riot, before it had time to commit any serious injury.

Of the privilege of the writ of Habeas Corpus. The great security of the citizens against unlawful imprisonment, is the process of habeas corpus. This writ is a writ of right, which any individual held in confinement, without a legal warrant, has a right to demand, for sufficient cause shown, verified by affidavit. The issuing of it, is regulated by Statute Law; and it may usually be had in vacation, from any of the justices of the superior state courts, or, where the imprisonment is under colour of the authority of the United States, or, of some of the courts of the United States, the writ of habeas corpus may be issued by the Supreme Court of the United States, or, in vacation, by one of the justices of such court. But this writ is not a writ of course; for, the court will not grant it except for probable cause, verified by affidavit. See 3 B. and Al. 420. Nor will they grant it in any case, where they perceive beforehand, that the person if brought up, must be remanded. Ibid. See also 3 Peters, 200. The writ will be issued, either at the motion of the party imprisoned, or at the request of any person, who has a right to the custody of such party; as, a father may have this writ for his son, who is a minor; a husband may have this writ for his wife; a guardian, for his ward; a master, for his apprentice. &c. See 1 Cook, 143. Where a woman is ill treated by her husband, or improperly confined, the court will grant a habeas corpus, and if she swears the peace against him, she will not be put in his custody again, nor will he be suffered to take her. 2 Bur. 1115. And, generally, where a person is discharged on habeas corpus, he is of course entitled to protection on his return. 1 Win. Bl. 410.

The wrk is directed to any person, whether an officer or a private individual, who has another in his custody, or under his control. Godb. 44. And the return to the writ must be made by that person.

The prisoner is usually brought in, with a return in writing, containing the causes of commitment or detention. Sometimes however, the writ is returned without bringing in the body, but the causes of commitment are assigned. In the former case, if the causes of detention are not sufficient, the prisoner will be discharged. In the latter case, if the reasons of commitment are insufficient, and no good excuse is assigned for not bringing in the body, the court may at discretion award an alias habeas corpus, or issue an attachment against the person so detaining the prisoner in unlawful confinement. See 5 T. R. 89. Sal. 350. The court will also grant an attachment against any gaoler, who uses a prisoner barbarously or inhumanly. 6 Mo. 137.

If the prisoner is too weak to be brought in, the court will direct all persons interested, as relations, servants, physicians, &tc. to have access to him; but not mere strangers. 2 Bur. 1099.

The object of the writ of habeas corpus being the liberation of such persons, as are imprisoned without sufficient cause, persons committed for treason or felony plainly expressed in the warrant of commitment, as also persons convicted or in execution, are not entitled to the benefit of this writ from the Supreme Court of the United States. Ex parte Tobias Watkins, 3 Pet. 203. The rule is presumed to be the same in most of the state courts. But, with regard to the power of the state courts to interfere, where there has been an abuse of an authority given by the United States, the decisions in state courts have not been uniform. In New York, a habeas corpus to bring up a soldier enlisted in the army of the United States, was refused. 1 Johns. Cas. 137. In the matter of Ferguson, Kent, Ch. Jus. held, that, if a soldier be detained against his will, knowing him to be an infant; or, if though an adult, he has been compelled to enlist by duress or violence, it is a public offence, but an offence of which the supreme court of the state of New York cannot take cognizance. The reason assigned is, that an abuse of an authority of the United States, is an offence against the United States, and exclusively cognizable in their courts. 9 Johns. 240. The habeas corpus was therefore denied in that case, though it appeared by affidavit, that the applicant was a minor of the age of seventeen years and some months. But, in Massachusetts, it has been held, that a state court may discharge, on habeas corpus, a minor who has enlisted into the army of the United States, without the consent of his parent or guardian. 11 Mass. R. 63. The same rule applies, if the minor has neither parents, guardian or master; the minor may be brought in, and discharged at his own request on a habeas corpus. Ibid.

The return of the habeas corpus should express the cause of commitment or detention, with the same certainty as the warrant. But, if a good cause of detention is expressed, though without technical formality, the court will not discharge the prisoner. Where it appears by the return, that the commitment is made by one who has no authority or jurisdiction, or is for a matter, for which by law no man ought to be punished, or, is otherwise illegal, the court will discharge the prisoner. So, if the cause of commitment is alleged so loosely, that the court cannot adjudge, whether it be a reasonable ground of imprisonment or not. See Bushel’s Case. Vaugh. 137. In this remarkable case, Mr. Bushel was one of the jury, who tried William Penn, the colonist, and a Captain Mead, for assembling unlawfully and tumultuously; the jury, though many attempts were made to awe and intimidate them by the Mayor of London, who presided at the trial, acquitted the accused. For this independence, they were fined forty marks a-piece, and were committed to prison for nonpayment of it; but applying for a habeas corpus, and sufficient matter not appearing on the return, the commitment was decided to be illegal, and Bushel was discharged.

The rule in the United States is conformable to the spirit of this decision. For, if the warrant of commitment appears to be illegal, for want of stating some good cause certain supported by oath, the court of the United States will discharge the prisoner. 3 Cranch, 453.

And therefore, when General Wilkinson, in 1807, with an armed force arrested Mr. Alexander, a gentleman of the bar, at New Orleans, and two other gentlemen, Messrs. Bollman and Swartwout, and sent them to Washington, Mr. Alexander was immediately discharged by a justice of the circuit court, and the two others by the supreme court, on a habeas corpus, their arrest being illegal. See 4 Cranch, 75. But the court will look no further, than to see that a sufficient probable cause is contained in the warrant of commitment. 4 Dal. 412.

In the case of Samuel Stacey, a habeas corpus was issued by a commissioner of the state of New York, directed to Com. Chancey and General Lewis, commanding them to bring before the commissioner the body of Stacey, with the cause of detention. General Lewis returned, that the body was not in his custody, &c. The return was considered by the supreme court of that state, to whom the subject was submitted, to be insufficient upon the face of it, because it did not say, that Stacey was not in his possession or power. It was therefore considered evasive and a contempt of process, and an attachment was immediately issued, without any previous rule to show cause. In this case, Chief Justice Kent in the course of his opinion made the following remarks. ‘This is a case which concerns the liberty of the citizen. Stacey is now suffering the rigor of confinement in close custody, at this unhealthy season of the year (August 1813,) at a military camp, and under military power. He is a natural born citizen, residing in the state. He has a numerous family dependent upon him for their support. He is in bad health, and the danger of a protracted confinement to his health, if not to his life, must be serious. The pretended charge of treason (for upon the facts before us we must consider it as a pretext,) without being founded upon oath, and without any specification of the matters of which it might consist, and without any color of authority in any military tribunal to try a citizen for that crime, is only an aggravation of the oppression of confinement. (There was an affidavit that, General Lewis had expressed an opinion, that a court-martial was the proper tribunal to try Stacey.) It is the indispensable duty of this court, and one to which every inferior consideration must be sacrificed, to act as a faithful guardian of the personal liberty of the citizen, and to give ready and effectual aid to the means provided by law for its security. One of the most valuable of these means is this writ of habeas corpus, which has justly been esteemed the glory of the English law; and the parliament of England, as well as their courts of justice, have, on several occasions, and for the period, at least, of the two last centuries, shown the utmost solicitude, not only that the writ when called for should be issued without delay, but that it should be punctually obeyed. Nor can we hesitate in promptly enforcing a due return to the writ, when we recollect, that in this country the law knows no superior, and that in England, their courts have taught us, by a series of instructive examples, to exact the strictest obedience, to whatever extent the persons to whom the writ is directed may be clothed with power, or exalted in rank.

‘If ever a case called for the most prompt interposition of the court to enforce obedience to its process, this is one. A military commander is here assuming criminal jurisdiction over a private citizen, is holding him in the closest confinement, and contemning the civil authority of the state. The parties are also at so great a distance, that no rule to show cause could be made returnable at this term, Sic.’ The court ordered that an attachment be issued, against General Lewis, unless he obeyed the habeas corpus, or discharged Stacey. See 10 Johns. R. 333.

It has been laid down generally, that no one can in any case, controvert the return to a habeas corpus, or suggest any thing contrary to it. It is held, that if a false return is made, suggesting a sufficient cause of detention, the court will not inquire into it, but will remand the prisoner, though he be prepared to show that it is false. It is held further, that he can have no other redress, but by an action on the case for a false return, or an action of trespass for the false imprisonment. See 11 Co. 99 b. Bagg’s case. Godb. 198. .

There are some opinions however to the contrary; See Bac. Abr. Habeas Corpus, (C.); and certainly, the writ of habeas corpus must be deprived of much of its utility and importance, if the person to whom it is directed, can avoid delivering up the prisoner, by a false return of a good cause. To render this process dependent upon the aid of the auxiliary actions of case or trespass, is to render it comparatively ineffectual.

During the last war, a citizen of Maryland was seized by a military recruiting party, under pretence of enlistment. He applied for a habeas corpus, and the officer returned that the enlistment had been regularly and fairly made. The citizen bad abundance of testimony to prove, that there had been an attempt to impose the bounty on him, which he immediately spurned at, and that he had done no act whatever, by which he could be considered as having enlisted. But the judge decided that he could receive no evidence to contradict the return, &c. A more flagrant case could not well be imagined. The consequence was, that the legislature of that state immediately passed an act declaring the law in relation to this subject, authorizing the complainant to controvert the truth of the return. See 5 Hall’s Law Jour. 456.

Though the law was very properly declared by the legislature of Maryland, for the satisfaction of doubts, it may well be questioned whether the decision of the judge, in the case referred to, was correct. The reason why returns in general cannot be contradicted is, because they are usually made by proper officers, appointed by the public. But the return of a private citizen to a habeas corpus, directed to him, is entitled to no such respect, and a recruiting officer in this particular is entitled to no higher consideration than any other citizen! None but officer’s entrusted by lawyith the custody of persons, saeh as gaolers, sheriffs, &c. Stc. can come within the reason of the rule, which does not permit returns to be contradicted. Suppose a man should have the person of a female in his custody, and a habeas corpus being directed to him, returns that she is his wife, or his daughter, or his ward, will the court suffer her to remain in his custody when she may be able to prove the return false. Suppose a man-stealer to have the person of another in his custody, and on a habeas corpus, returns that the prisoner is his slave, will the court permit him to carry off his victim, without hearing the evidence which he may offer to prove the return to be false? For, color alone is no safe criterion; since many blacks are free; and there are some slaves, especially children, whose complexions cannot be distinguished from that of the whites.

To make the writ of habeas corpus an effectual remedy for illegal imprisonment, the prisoner ought to be permitted to controvert the truth of the return, in all cases where the person is not a civil officer, entrusted officially with the custody of prisoners. This, on principle, is believed to be the true law on the subject. In all other cases, no other excuse for not bringing in the body ought ever to be received, but, either, that the prisoner could not be removed on account of sickness, or, that he was not then and had not been in the custody of the respondent, or, that he had made his escape, &c.

If a person should be committed for a contempt, by a court of competent jurisdiction, the liberty of the citizen would seem to require, that the matter or act constituting the contempt, should be returned, in order that there might appear to be sufficient cause for the imprisonment, of which the court having authority to issue the habeas corpus, might judge. But, as every magistrate may by law commit for a contempt founded on sufficient cause, the matter of the contempt ought to appear both in the commitment and on the retnrn to the habeas corpus; otherwise, under a loose charge of contempt without further specification, any citizen may be imprisoned without remedy. And therefore, if either house of congress, or of either of the state legislatures, should commit for a contempt generally, without specifying the particulars of the contempt, a regard for the liberty of the citizens, requires, that the supreme court of the United States, or the supreme court of the particular state, according to the circumstances of the case, should discharge the prisoner on account of the looseness and generality of the return. But, in case of such commitment, if, the particulars of the contempt were specified, and the court should be of opinion that the cause of detention was not sufficient, being grounded on a mere usurpation of power, in violation df the constitution of the United States, or, of that of the particular state, according to circumstances, they ought, without hesitation, to discharge the prisoner. This doctrine seems to be supported by the remarks of Ld. Ellenborough in the case of Burdett v. Abbott, so far as to discharge a prisoner where an insufficient cause of commitment is assigned in the warrant, but is at variance with it in other respects. But, as imprisonment is only justifiable on a warrant expressing a certain sufficient cause, and as it does not consist with the nature of our constitutions and laws, that any body of men, though in authority, should have the power to imprison the citizens arbitrarily, by the simple expedient of assigning any cause in such general terms, that no other tribunal can determine whether it is or is not sufficient, it is presumed that the qualification of Ld. Ellenborough’s doctrine, would not be sustained here. In delivering his opinion in the case referred to, his lordship remarks: ‘If a commitment appeared to be for a contempt of the house of commons generally, I would neither in the case of that court, nor of any other of the superior courts, inquire further; but, if it did not profess to commit for a contempt, but for some matter appearing on the return, which could by no reasonable intendment be considered as a contempt of the court committing, but a ground of commitment, palpably and evidently arbitrary, unjust and contrary to every principle of positive law or rational justice; I say, that in the case of such a commitment (if it ever should occur, but which I cannot possibly anticipate as ever likely to happen) we must look upon it and act upon it as justice may require, from whatever court it may profess to have proceeded.’ See 14 East, 1. But the subject is submitted to the intelligent reader.

The writ of habeas corpus cannot be suspended except by congress, and by them, in cases of rebellion or invasion only, when the public safety may require it. When, therefore, General Jackson, in Dec. 1814, undertook to suspend the privilege of habeas corpus, and proclaim martial law, he betrayed a great misapprehension of the extent of his own authority. It is to this cause, it is believed, and not to any intention of usurping power not delegated, that these measures should be ascribed. But, as he afterwards enforced his illegal proclamation, by means of the armed force under his command, it shows the great inconvenience of entrusting the control of a large military force, to persons who are unwilling to acknowledge, or unable to distinguish the proper limits of their own authority. For this invasion of the rights of the citizens he was fined $1000. See 3 Martin’s Reports, 530.

It may be remarked, in conclusion, that in all cases, where a person is brought up on a writ of habeas corpus, and a sufficient cause of commitment is returned, if he is charged with any crime which is not capital, he may be bailed. But, if he is charged with a capital offence, he will be remanded.

(fn1) The defence was afterwards conducted by Andrew Hamilton, an eminent barrister of Philadelphia, and a Mr. Chambers. The argument of Mr. Hamilton displays great abilities and learning, as well as eloquence, and is particularly deserving of observation for his setting the rights of juries, in cases of libel, on the same basis which was adopted by Mr. Erskine half a century afterwards, in his argument on the trial of the Dean of St. Asaph, and which is now the settled law of the land, in England and in this country. He also most strenuously advocated the doctrine of giving the truth, in evidence, &c. The peroration of his argument is here inserted, partly for its manly sentiments, and partly as a specimen of the eloquence of the Philadelphia Bar, a century ago.

‘Power may justly be compared to a great river; while kept within its due bounds, it is both beautiful and useful; but when it overflows its banks, it is then too impetuous to be stemmed; it bears down all before it, and brings destruction and desolation wherever it comes. If then this is the nature of power, let us at least do our duty, and like wise men who value freedom, use our utmost care to support liberty, the only bulwark against lawless power, which in all ages has sacrificed to its wild lust, and boundless ambition, the blood of the best men that ever lived.

‘I hope to be pardoned, Sir, for my zeal on this occasion; it is an old and wise caution, ‘ that when our neighbor’s house is on fire, we ought to take care of our own.’ For though, blessed be God, I live in a government where liberty is well understood and freely enjoyed, yet experience has shown us all, (I am sure it has to me,) that a bad precedent in one government, is soon set up for an authority in another, and therefore 1 cannot but think it mine and every honest man’s duty, that, while we pay all due obedience to men in authority, we ought at the same time to be on our guard against power, whenever we apprehend that it may affect ourselves or our fellow subjects.

‘I am truly very unequal to such an undertaking, on many accounts. And you see I labor under the weight of many years, and am borne down with great infirmities of body; yet, old and weak as I am, I should think it my duty, if required, to go to the utmost part of the land, where my service could be of any use, in assisting to quench the flame of prosecutions upon informations, set on foot by the government, to deprive the people of the right of remonstrating, and complaining too of the arbitrary attempts of men in power. Men who injure and oppress the people under their administration, provoke them to cry out and complain; and then make that very complaint the foundation for new oppressions and persecutions. I wish I could say there were no instances. But, to conclude, the question before the court, and you, gentlemen of the jury, is not of a small nor private concern. It is not the cause of a poor printer, nor of New York alone, which you are now trying. No: it may in its consequence affect every freeman that lives under a British government on the main of America. It is the best cause; it is the cause of liberty; and I make no doubt but your upright conduct, this day, will not only entitle you to the love and esteem of your fellow citizens; but every man who prefers freedom to a life of slavery, will bless and honor you, as men who have baffled the attempt of tyranny; and by an impartial and uncorrupt verdict, have laid a noble foundation for securing to ourselves, our posterity, and our neighbors, that, to which nature and the laws of our country have given us a right—the liberty, both of exposing and opposing arbitrary power, in these parts of the world at least, by speaking and writing truth.’

The jury brought in a verdict of not guilty; and Mr. Zenger was discharged from his imprisonment.

Continued in PART III: Of The Policy Which Ought To Be Pursued By The General Government In Relation To Agriculture, Manufactures, And Commerce.

See the other parts of this series:
RIGHTS OF AMERICAN CITIZENS: General Rights; Division One
RIGHTS OF AMERICAN CITIZENS: General Rights; Division Two
RIGHTS OF AMERICAN CITIZENS: General Rights; The Social Compact
RIGHTS OF AMERICAN CITIZENS: The Powers delegated to the General Government in the Federal Constitution
RIGHTS OF AMERICAN CITIZENS: Powers delegated to the State Governments
RIGHTS OF AMERICAN CITIZENS: The Independence of the States
RIGHTS OF AMERICAN CITIZENS: The rights reserved to the people of the United States
RIGHTS OF AMERICAN CITIZENS: Of the right of suffrage and of elections
RIGHTS OF AMERICAN CITIZENS: The Liberty of Speech and of the Press
RIGHTS OF AMERICAN CITIZENS: The Power of Courts to punish for Contempts
RIGHTS OF AMERICAN CITIZENS: The Law of Libel in relation to Public Officers
RIGHTS OF AMERICAN CITIZENS: Of the mode of obtaining redress for any infringement of civil or political rights, committed either by the officers of the General Government, or of any of the State Governments.
RIGHTS OF AMERICAN CITIZENS: The policy which ought to be pursued by the federal government in relation to agriculture
RIGHTS OF AMERICAN CITIZENS: The policy which ought to be pursued by the federal government in relation to manufactures
RIGHTS OF AMERICAN CITIZENS: The policy which ought to be pursued by the federal government in relation to commerce


Bill of RightsThe Rights of an American Citizen: With a Commentary on State Rights, and on the Constitution and Policy of the United States by Benjamin Lynde Oliver published 1832


CHAPTER VI: Of the Rights of Witnesses

As society is organized for the protection of the persons, and the security of the property and rights of its members, each individual may be considered as undertaking on his part, to conform to all the regulations, which the government may think it expedient to introduce, for the more readily obtaining of those important objects.

Among these regulations may usually be found one, which gives every individual a right to call on others to give testimony, in any cause which may arise before the tribunals of justice, in which his rights are concerned.

This right of calling on witnesses, is one of the greatest importance; because, without it, no man would be able to obtain redress by law, for any injuries which might be offered to him, for want of evidence; unless he was so fortunate as to find volunteers, who would step forward of their own good will to give testimony in his favor. The law therefore provides a process, by which a party in any cause may compel the attendance of witnesses, so far as may be thought necessary to secure their testimony. But, as it would be unreasonable to compel a witness to neglect his own affairs, and to be at the expense and trouble of going from his place of residence, and living at board during his attendance on the court, provision is made by the law for the indemnity of the witness in all these respects.

A witness therefore is under no obligation to attend court at all, unless he is summoned by a regular subpoena, stating the cause in which his testimony is wanted, and served by a regular officer, and also has sufficient money tendered him to defray his charges, or, at any rate, such allowance as is provided by the statute law, whether such allowance is more or less. If such a sum is tendered him, he will be obliged to attend so many days as it is a legal allowance for, unless he is sooner dismissed. But, it seems, he is under no obligation to make advances ; and therefore, after the money which has been paid him is expended, or rather, after the time has elapsed, for which the money so paid is a legal allowance, he is under no obligation to remain in attendance upon the court, unless a further advance is made to him.

Though a witness, when summoned, is obliged to attend court if his expenses are tendered, yet the notice ought not to be so short that, in order to comply with it, he must break off suddenly from his business; the notice should be a reasonable one, so that he may not be put to any inconvenience from the mere circumstance of its being unexpected.

So, a witness is entitled to a reasonable time to convey himself from the place where he is summoned, to the court which he is to attend. As there is no allowance made him by law, for coach hire, turnpikes, Sic. it would seem that he is under no obligation to pay such charges; indeed, he may be unable to do it. Unless therefore some suitable conveyance is provided for him, he can be under no obligation to go any otherwise than on foot, and on the common county road. And as the law estimates a day’s travel on foot, at a certain number of miles, (say twenty) if the witness, as soon as he is summoned and receives his advance, sets out and travels at the rate of twenty miles per day towards the place where the court is sitting, it will be difficult to make out against him a case of contempt for not attending at an earlier day, though perhaps he might have arrived in half the time by taking the stage coach. The default is in the party who summons him; for, either he should have given an earlier notice, or furnished the witness a. suitable conveyance, or advanced him an additional sum for that express purpose.

A witness is usually allowed for a day’s attendance, though he may not actually attend in court five minutes; and if he is obliged to attend court on two or three different days, he is entitled to one full day’s attendance on each.

A person must be summoned, in order to be subject to examination as a witness. And therefore, if an individual should happen to be in court, without having been summoned, and one of the counsel in a cause should call upon him to be sworn and give his testimony, he may refuse to be sworn, without being guilty of any contempt, and has a right to depart without molestation. ,

Where a married woman is summoned, the fees must be tendered to her, and not to her husband.

A witness summoned to attend court, is entitled to the protection of the court, against all arrests, while going to court, or attending upon it, and in returning, if he uses common diligence and expedition, without being obliged either to take the shortest road, or to make use of more than ordinary dispatch.

This protection will be granted, either by a writ of protection, which the witness may have by asking for it, and which it will be a contempt of court for any officer to disobey, by arresting the witness after it is shown to him; or, if the witness has never applied for the writ, and is arrested, the court, on motion, will discharge him. This protection, however, is afforded against arrests on actions brought for causes of a civil nature only, but will not protect the witness from arrests, on warrants for breaches of the peace, &c.

A witness, when called upon to testify, is supposed to be entirely disinterested, because the smallest pecuniary interest in the event of the cause, will be a sufficient cause of exception to disqualify him as a witness. To ascertain whether a witness is interested or not, he may be asked that question, or the testimony of others may be brought to prove it. But, if the question is made to the witness, and he denies it, it is not permitted afterwards to introduce the testimony of others to contradict him.

As no person will be permitted to give testimony, by which he will discharge himself from any species of legal accountability by throwing that burthen on another; but, if he is wholly and absolutely discharged himself, from such accountability in any legal way, will immediately become a competent witness, it has become a common practice to qualify an interested witness, by releasing him, if there is a cause of action against him, so that he becomes entirely indifferent to the result of the suit.

It frequently happens, also, where an action is brought against a wrong party by mistake, either of the law or the fact, that the person against whom the action ought to have been brought, if used as a witness, would clear the defendant by making himself chargeable. To the competency of such a witness, the plaintiff in such case can never make any valid objection, because he is called upon to swear against his own interest.

But, it may be asked, is a witness bound by law, to testify against his own interest in this way? May he not decline to answer any questions, the answers to which may be given against him either in a civil action, or on a criminal prosecution?

With regard to such questions, as if answered one way, tend to incriminate the witness, he is entirely at liberty to decline answering them. But, this is held to be the privilege of the witness alone. The counsel of the parties have no rights on this subject. The witness may refuse to answer the question or not, at discretion. As a matter of prudence, however, the witness ought to take care to object to answering the first question in relation to such objectionable subjects of inquiry; for, it has been held, if he answers to part, he may be compelled to answer to the whole, whatever the consequence may be. See 1 Moody and Mai. 47.

PrecedentThis doctrine however seems to be laid down too broadly; for, the only reason why a witness who has answered to part, shall be compelled to tell the whole, is, that a partial statement may do great injustice to one of the parties. But, the answer is, that, where part is told, and the rest is inaccessible, the part told is no evidence at all to the jury. Thus, the court will not suffer part of a deed, where the rest is torn off, to be shown to the jury as evidence of a contract; because it is impossible to tell what the effect of the whole would be. Suppose a witness, after he had been examined originally, should die in a fit before his cross examination, would not the court generally instruct the jury to pay no regard to his testimony, though possibly there might be some excepted cases? The doctrine of the case cited, it would seem, ought to be restricted to cases, where a witness, with a full knowledge of his rights, to refuse to answer all questions tending to incriminate himself, voluntarily testifies to part of a transaction, &c. Here he may be compelled to answer to the whole, without any violation of principle ; since, by answering the first question, he, of his own accord, relinquishes the protection which the law affords him. Ld. Ellenborough, in the case Jean Peltier, remarks : ‘I think it is the office of the judge to suggest to a witness, that he is not bound to answer anything which will incriminate himself; and if a judge were not to remind a witness of that circumstance, he would neglect his duty.’ It would therefore be a good rule to establish, that a witness does not relinquish the protection of the law in any case, by a partial answer, unless the court has given him notice in the manner suggested by Ld. Ellenborough.

It is held, that questions may be put to witnesses on a cross examination, tending to degrade them, for the purpose of trying their characters, unless the answers to such questions may expose them to punishment. 1 Moody and Mal. 10S. The inference is, that the witness will be bound to answer any such questions. In New York, however, it has been held, that a witness is not only not bound to answer any questions, the answers to which may expose him either to a civil or criminal prosecution; but, it seems, he is under no obligation to answer any questions, the answers to which may have a tendency to degrade or disgrace him. See 1 Johns. R. 498. Whether such questions ought to be permitted to be put, does not seem clearly settled. For, it is not the same thing to allow the question to be put, and leave the witness to answer, or not, at discretion, and to refuse to permit such questions to be put at all. The decisions on this subject cannot easily be reconciled with each other. In one case, the court would not suffer the question to be put to a witness on a cross examination, whether he had not been put in the house of correction. 4 Esp. R. 225. On the trial of James Watson for high treason before the king’s bench, the general doctrine in relation to this subject, was held to be: 1. That if any question is put to a witness to shake his credibility, he may refuse to answer it. If he answers, you must take the answer, and will not be allowed to impeach it. A witness who has received a pardon for a crime, or who has been prosecuted, and the prosecution is put an end to, is not bound to answer any questions in relation to the subject. No evidence will be received to show that a witness has committed infamous crimes, for the purpose of impeaching his character and testimony, short of the record of conviction; because the court will not try collateral issues, which might be endless. If a question is asked a witness, whether he has not committed a particular crime, and he refuses to answer; though this may have its effect on the jury, yet it is not sufficient to discredit him in law, or render him incompetent. It seems to be the settled practice in England to permit such question to be put, and leave the witness to answer or not, as he pleases.

In Phillips’ treatise on evidence, however, a case is mentioned where, a witness being asked on a cross examination, whether he had not been tried for theft, refused to answer, and appealed to Ld. Ellenborough, whether he was bound to answer. Ld. Ellenborough said, :If you do not answer I will commit you,’ adding, ‘you shall not be compelled to say, whether you were guilty or not.’ 1 Phil, on Evi. 269, in notis. In New York, it seems, no public officer is bound to answer any questions in relation to his official conduct, the answer to which may tend to impeach his integrity. See 1 Johns. 498.

Whether a question tends to incriminate a witness or not, it is held, not to belong to the court to decide, but to the witness himself. Because, the court cannot know beforehand the facts and circumstances, which may be necessary in order to decide whether it may or may not, have such a tendency. For, though a question apparently may not have that tendency at first, yet, it may be the first link of a chain which has. See 2 Nott. and Mc. Cord. 15. In Burr’s trial, it was held, that a witness may be required to answer on oath, whether he thinks answering a question will tend to incriminate himself, before he will be allowed to decline to answer it. With regard to questions, the answers to which may expose the witness to a civil action, or may be given in evidence against him, in any action, which may afterwards be brought either by or against him, the law does not seem finally settled. Under this general class, a variety of cases are comprehended, which, in their decision, would seem to involve very different considerations. For, Erst—the answer to the question may be obviously and indispensably necessary to the plaintiff in the action, for the maintenance of his suit, or, it may be thus necessary to the defendant’s defence, in a civil action, or the prisoner’s defence, on a criminal prosecution; if it is not answered, therefore, there must be a failure of justice. Second—the answer, though it may be directly injurious to the interest of the witness, may be wanted by one of the parties, for the mere purpose of strengthening an argument of the probability or improbability of a certain fact, which is material to his cause. Here there is a greater or less probability, according to the circumstances of each particular case, that there may be a failure of justice in consequence of not obtaining an answer from the witness. The rule, in these cases, it is obvious, must be grounded on the same principle. It may be remarked here, that, in these cases, if the witness is compelled to testify, no injustice can be done to him by it in fact, because he is bound to answer nothing but the truth. He does not therefore create a cause of action against himself, but merely furnishes evidence against himself, by which an action may be maintained against him. But, however, it has been held, that though one who conveys land, may be a witness to prove that he had no title, he is not compellable to give such evidence. 2 Ld. Raym. 1008. By the law of Scotland, it seems, a witness is not held to answer against his interest; and in such case, it is held to be the duty of the presiding judge, to inform him of his right. Tait on Evi. 429. In Pennsylvania it has been held, that a witness is bound to answer any questions the answers to which do not render him liable to a criminal charge, or tend to degrade him. In the case of Baird v. Cochran, Tilghman, Ch. Jus., ruled the law to be so, and observed, that’ every man may be compelled on a bill filed against him in equity, to declare the truth, though it may affect his interest; why then should he not be compelled at law, except where he is a party to the suit’? This is a most unfortunate analogy, ox rather there is a great want of it in the two cases. A man who has a bill filed against him in equity, is compelled to disclose; to maintain the analogy, a defendant in an action at law, ought to be compelled to disclose. This, however, is not contended for; but it is contended, that a witness ought to disclose his interest, in an action at law between third persons: there would be some ground for analogy, if a third person were compelled to disclose his interest in a suit in equity between third persons. But the true ground of the argument is, that as a person may be compelled to disclose in equity, by bringing a bill in equity against him, there is no hardship in compelling him to disclose the same interest, in an action at law between third persons. But there is a striking difference between being compelled to answer questions on a cross examination, as a witness on the stand, and giving answers to interrogatories, with the direction and assistance of legal counsel at the elbow.—See 4 Serg. & R’ 397.

In Connecticut, it is settled, that a witness shall be protected from answering questions, which subject him to a civil suit or debt. See More v. Hathaway. 3 Con. R.

Third—the question may be wholly immaterial to the issue, so that, whether it be answered affirmatively, or negatively, or not at all, it will have no effect whatever on the result of the action or prosecution. In this case, it is obvious, there will be no failure of justice in the cause then in hearing, if the witness should decline answering. It may be remarked, also that, if the witness should see fit to answer, he cannot be convicted of perjury, though he should swear falsely; because perjury can only be committed by swearing falsely in relation to something which is material to the issue. For, though it is settled that perjury may be in a mere circumstance, yet it must be one that is material to the issue, though it is not necessary that it should be decisive. So held by Ld. Holt. See 10 Mod. 195. Carth. 422. 2 Ld. Raym. 889.

It has been held, that a subscribing witness to a note, may be compelled to testify to that fact, though he may be bail for the defendant; but, if he is not a subscribing witness, he would be at liberty to testify or not. See 1 Strang. 406. This is on the principle, that a subscribing witness undertakes to testify when called on, and cannot by his own act destroy the party’s right to his testimony. As to the question, what papers or documents a witness, who has been summoned by a subpoena duces tecum, [A subpoena duces tecum is used to compel the production of documents that might be admissible before the court. It cannot be used to require oral testimony] is bound to produce, no general principle appears to be settled, which will apply to every case that may arise. It seems, however, that a witness is not bound to expose his own title deeds. Such is the settled law in England, because, by exposing his deeds, he may disclose a flaw in his title. The same reason does not seem to apply in places where title deeds are recorded; but, as a copy of a title deed may at any time be had by applying to the registrar, there seems to be no reason, why a person should be compelled to produce his title deed, unless there is some other object, than to obtain a knowledge of its contents. So, it is held that a witness ought not to be compelled to produce his private books, relating to his private transactions. See 1 Str. 646.

So, a trustee, to whom it is suggested the plaintiff has conveyed his estate in trust, may demur to the production of the title deeds. 2 Stark. R. 203.

So, a solicitor to a third person will not be compelled to produce the deeds of such third person, where it may be prejudicial to his interest. 1 Starkie, 95. For, generally, an attorney is not at liberty to disclose communications made to him by his client, whether the client is or is not a party to the cause before the court. See 2 Camp. 578. In these cases, it may be remarked, that this is the client’s privilege; and, it will seem that, where any such confidence is recognized by the law, the witness will not be called on to testify, nor even permitted to do so. And therefore the client’s interpreter cannot be examined as to communications, made through him to his counsel. And, from a regard to a similar principle, a woman after her husband’s death shall not be examined as to conversations, had between herself and her husband during his life time. And for the same reason, a woman, after a divorce, cannot be called on to give evidence of conversations previously had between herself and her husband. See 1 Ryan and Moody, 198.

It has been held, that, under a subpoena duces tecum, a witness is under no obligation to produce private papers in his custody. 1 Esp. N. P. Cases, 405. In the case referred to, Ld. Kenyon denied the general position, that, in such case, a witness might be required to produce every paper in his possession, which did not tend to incriminate him, because it would ruin millions. See 1 Esp. N. P. Cas. 405. However, it seems impracticable, to lay down any general rule or principle as to the production of papers and documents. In Amty v. Long, Ld. Ellenborough observes, that ‘though it will always be prudent and proper, for a witness served with such a subpoena, to be prepared to produce the specified papers and instruments at the trial, if it be at all likely, that the judge will deem such production fit to be there insisted upon; yet, it is in every instance a question for the consideration of the judge at nisi prius (fn1), whether, upon the principles of reason and equity, such production should be required by him; and, of the court afterwards, whether having been there withheld, the party should be punished by attachment.’ 9 East. 485. The question as to the obligation of the witness to produce papers, is therefore to be decided by the court, according to the circumstances of each particular case. But, this is to leave the subject wholly unsettled, because the opinion or discretion of different judges, as to the same facts or circumstances,. is found to be different, and indeed the same judge is sometimes found to entertain different opinions at different times. Thus, when the question was made on the trial of Ld. Melville, whether a witness was bound to answer a question, the answer to which would subject him to a civil action, four judges held that he was not, and eight judges held that he was. As this is a case, where a similar principle is involved, if it had come up at nisi prius, the witness might or might not have been held to answer; according as one of the four, or one of the eight judges happened to preside. If the law is so unsettled, therefore, on this subject, and a case should occur, where the witness should be called upon to violate the sacredness of private confidential correspondence, or, to render himself liable to a civil action, it might be well for him not to be too hasty, either in the answering of questions, or in the production of papers. It has been said, and there seems to be no improbability in it, that Ld. Keith, in his answer to a question proposed to him, as a witness in an insurance case, subjected himself to damages to the amount of ten thousand pounds sterling. If a case of any considerable importance, therefore, should arise, the witness must by no means rely upon the court to protect his rights, unless he claims them. For, if he neglects to assert his rights, the court will take for granted that he waives the objection, and consents to produce the letters, and to answer the objectionable questions. Many things take place in this way, in the course of a trial, which would immediately be overruled by the court, if an exception were taken to them, regularly and in season. But, in most cases, the witness not being acquainted with the precise extent of his rights, does not know what he may legally insist on, and what he cannot. Sometimes, therefore, it happens, that no objection is made, and the irregularity passes off without notice, as if done by consent. In any such case, therefore, the witness should state his objection to the court, and if of great consequence, should request delay, in order to obtain the advice and assistance of counsel to argue it, and, if it should be overruled by the court, and it becomes necessary for the protection of his rights, and the court is one of inferior jurisdiction, he may appeal, and if his appeal should not be allowed, and he is confident that his objection is a legal one, he may take the hazard of disobeying. For, if he is committed in consequence, he may bring his habeas corpus, when, if his objection is legal, he will be discharged. If a witness should be called on to produce papers, put into his custody by a third person, who had a right to call for them when he pleased, it would be very proper to give immediate notice of the subpoena, to such third person, that he might adopt such measures as he saw fit. .If in consequence of it, the owner were to replevy [To regain possession of by a writ of replevin] them (though it has been held that at common law replevin does not lie for charters) there does not appear to be any way of coming at them. But the law does not seem to be settled.

It is apparent that the rights of witnesses in some respects, are not so much regarded, and consequently, not so well protected as they ought to be, from whatever cause it may arise. No reference is here had to the circumstance, that a witness is compelled to neglect his own affairs, for the purpose of traveling to and attending upon the court, to give testimony in a cause in which he has not the slightest concern; because this is for the benefit of one of the parties in the cause, and, is the consequence of a regulation, of which he will have the advantage himself, if he ever has a cause in court. But, it is intended to allude principally to the mode of examining witnesses, by way of cross examination, as it is sometimes seen practiced, and, for any thing that appears, may always legally be done, but seldom justifiably.

The legitimate objects of a Cross examination, are among others, 1. To enable the party against whom a witness is brought forward to testify, to elicit from him any circumstances which attended the transactions to which he may have testified; but which he may have omitted, or had no opportunity to mention on his direct examination. 2. By a series of close and judicious interrogatories, respecting the minute circumstances attending such transactions, to ascertain whether the witness is testifying to a story, which he has either fabricated himself or concerted with others. 3. To determine in the same way, supposing the witness to be honest, how far his observation, memory, and discrimination can be depended on. 4. On the supposition, that he is a dishonest witness, to exhibit him in that light to the jury; by compelling him to invent new falsehoods at every question, in order to keep his story consistent with itself, until he is involved unconsciously, in absurdity, impossibility, and self-contradiction. The advantages of a cross examination in all these respects, are obviously very great. In an examination in chief, it is a general rule, though there are some exceptions, that the questions should be very general, so as not to intimate to the witness what he is desired to say, nor to prompt him, nor to lead him, nor to put answers in his mouth. After the direct examination is finished, which terminates as soon as the witness has testified sufficient for the examiner’s purpose, because it is part of the professional tactics, observed on such occasions, not to push to the inquiry further, as well because it is unnecessary, as because something unfavorable may come out, the cross examiner considers it his duty to draw out what has thus been omitted, which frequently gives a different color to the case. On a cross examination, therefore, the advocate has a right to make use of questions of a much more direct and particular nature, than are usually allowed on an original examination. The advantage of this mode of examining a witness, in detecting a concerted story, sworn to by the witness on his direct examination, is very great; a few moments of well directed cross examination, being sufficient to expose the most ingeniously contrived fabrication. This is done by a close inquiry into minute circumstances, without which no real event ever happens, and which, if remembered, may readily be sworn to by an eye witness. But minute circumstances are seldom concerted in a false relation, and the witness, if interrogated in relation to them, is obliged to rely on his power of extemporaneous creation, to keep his testimony consistent. The consequence is, that the consciousness of adding falsehood to falsehood, accompanied with the fear of detection, exposure and punishment, soon throw him into a state of perceivable embarrassment, and perhaps inextricable confusion. A witness sometimes falls into a similar situation, from having answered a question on his direct examination, with too little precision, either from heedlessness or vanity, though without any unfair intention whatever. In a case of this kind, which occurred on the trial of Hardy, for high treason, a witness, who was a dancing master, being asked whether there had been a subcription for a certain individual imprisoned; answered, ‘ Yes; perhaps I gave a shilling or half a crown, or a guinea or five guineas towards his relief.’ Being afterwards cross examined down to, ‘but I might have given half a crown,’ and being further urged with perplexing questions on the subject, he said, ‘I would as soon give one as the other for a poor family in distress.’ Ch. Jus. Eyre then gave him the following reproof and caution. ‘You have brought yourself into a scrape, only for the sake of a flourish. When you are upon your oath, if you would only speak plain English, you would be under no difficulty. There is a great difference between a shilling, and a guinea, and five guineas, therefore you should not have conveyed an idea, that you did not know whether you gave one shilling, two shillings, one guinea or five guineas. I would advise you, when you are upon your oath, never to speak by metaphor,’ &c.

With regard to the mode of examining witnesses, it may be further remarked, that it is not considered proper, though it is a very common practice, to state direct propositions to a witness, with the tone of a person asking a question, and to require an answer to it, as if it were really a question. On this account, Mr. Justice Abbott checked the examining counsel in the trial of Isaac Ludlam for sedition; ‘You must not,’ says he) be angry with the witness, if what he says is not an answer, when you do not put a question.’ It is also a frequent practice in cross-examining a witness, to state interrogatively to him, propositions consisting of a variety of circumstances, some of which are true and some false. This is unfair and ensnaring; for, if he gives a general denial, intending that the whole is not correctly stated, it may be argued, that he has denied that part which is true. On the other hand, if he gives a general assent, intending it only for that part which he thinks material and which is strictly true, if the slightest inaccuracy can be detected in the whole proposition to which he has assented, it may be urged against him to impeach his credit. A witness for his own security, in any such case, would do well, to make no reply to propositions which are not questions, and, where the question is embarrassed with a variety of particulars, should request the examiner to simplify his question, or should ask, ‘what is the question,’ which will induce him to put it in a more simple form, and directly to the purpose. It is a common practice also with some, when examining a witness, to interlard their questions with comments and observations. This irregularity is also much censured by the court; particularly by Ch. Jus. Eyre, and Ld. Ellenborough. It is also considered unfair and a breach of decorum, While the counsel on one side are examining a witness, for the counsel of the opposite party to make use of grimaces or gesticulations, expressive of surprise, as holding up the hands, &c. In Watson’s trial for high treason, the court declared, that they would animadvert very severely upon such conduct. In the course of the same trial, Ld. Ellenborough checked Mr. Wetherell for improper treatment of a witness, and observed that he would not suffer injustice to be practised upon a witness by counsel. IMr. Jus. Abbott, also remarked on another occasion during the same trial, ‘ Every witness is entitled to the protection of the court from insulting questions and observations.’ 32 St. Tr. 291,298.

It sometimes happens, that the result of a trial depends upon a particular fact, which is sworn to by a single witness only. When this is the case, every legal measure possible is resorted to, for the purpose of impeaching his credit with the jury, so that they may set his testimony aside, and find their verdict for the party against whom he testifies.

For this purpose, persons may be called to testify, that the general reputation of the witness for veracity is bad. But they can only be asked general questions in relation to the subject, i. e. as to their opinion of his character for truth, and the grounds of that opinion; but, it would seem, that they ought not to be permitted to state particular facts against the witness. See 2 Starkie, 241.

The testimony of the witness may also be impeached by showing, that he has previously done or said something, inconsistent with what he now testifies. But, before introducing testimony of this kind, the witness must be asked, whether he has said or done that particular thing, so that he may have an opportunity to deny, or admit and explain it; and contradictory testimony ought not to be admitted until he has had this opportunity. See the opinion of Abbott, Ch. Jus., in the Queen’s Case; 2 Brod. and B. 312.

A witness cannot be cross-examined as to any collateral independent fact, irrelevant to the matter in issue, for the purpose of contradicting him, if he answers one way, by another witness, in order to discredit his whole testimony. In such cases only general questions can be put. If, however, the witness should answer, his answer cannot be contradicted by other witnesses. For, this would lead to the trial of collateral issues, and might be endless. See 7 East, 108. 2 Campb. 637.

Nor can a witness be cross-examined as to facts not in issue, if such facts are injurious to the characters of third persons, not connected in the cause. 1 Car. and P. 100.

The court will protect a witness from questions put through impertinent curiosity, and much more, if it seems probable, that any unfair use may be made of them. See the opinion of Tilghman, Ch. Jus., in the case of’ Baird v. Cochran. 4 Serg. and R. 397. See also, 1 Car. and P. 363.

Every witness is entitled to ordinary civility, at least, from the examining counsel; since, whether he is willing or not, he may be compelled to attend the trial by the process of the court, and if he refuses to answer proper questions, may be fined and imprisoned for the contempt. He is not at all, in legal contemplation, under the control of the examining counsel, except so far as the court sanctions and authorizes the questions put by him, and, in case of any illiberal treatment, has a right to claim the protection of the court, which is readily afforded when there is a suitable occasion for it and it is claimed decently and respectfully. If the ill treatment is gross, or the witness does not seem to be aware that he has a right to this protection, the court will interfere of their own motion, as where any opprobrious epithet is bestowed on a witness, whether merited or not. It would certainly be singular, if the judges should permit their court to exhibit a scene of indecent altercation between the examining counsel and a witness. In the trial of Mr. Hardy, both Mr. Erskine and Mr. Gibbs were checked by Ch. Jus. Eyre, for addressing the witness by the epithet of spy, though he was in fact a government spy, and an informer. 24 St. Tr. 751.

It is plain, therefore, that those professional gentlemen mistake the purpose of a cross-examination very much, who waste . the time and patience of the court, jury and witnesses, by asking a thousand frivolous and unmeaning questions, which have no bearing on the merits of the cause. When such questions are asked, the court cannot always stop them, because they cannot tell beforehand, whether something may not be made of them in the address to the jury. If therefore they are not absolutely illegal questions, and the witness makes no objection, the court commonly does not interfere. It frequently happens, in consequence, that the witness not knowing his own rights, and believing himself bound to answer every question whatever that is put to him, makes no objection to answer, and if he finds himself insulted by an offensive question, instead of asking the opinion or protection of the court, resorts to ill-tempered and petulant answers. But, when it is found that, after all this parade of questioning, no use can be made of the answers, let them be made which way they may, being wholly foreign to the case before the court, the judges and jury very naturally feel disgusted, because they perceive their attention has been kept in suspense without any other object than the gratification of the examiner’s vanity, in having all eyes directed towards him during the examination. These useless questions furnish the occasion for the sarcasm of Swift, which is in substance, that if an action at law is brought for a cow, the decision of the case does not depend upon the inquiry, whether the cow belongs to the plaintiff or to the defendant, but whether the cow is a black cow or a red cow, or has long or short horns.

It is to be much wished that the law, with regard to the examination of witnesses, were altered in the respects following, viz:

1. That witnesses should never be called for the purpose of impeaching the testimony of a witness, by giving testimony against his character for veracity. This is a most unjust practice, and though sanctioned by long usage, is contrary to legal analogy. For, in this way, the reputation of the witness is attacked in a suit between third persons, in which he has been compelled to testify, and, for aught that appears, may have told the exact truth. This is done without any previous notice to him; and, if he had received notice, he is entitled to no process to compel the attendance of his witnesses, not being a party to the suit. If his enemies are summoned as witnesses against him, they have an opportunity of aspersing or disparaging his character in this respect, with perfect impunity. The defence of his character, is left entirely with one of the parties in the suit, whose principal if not sole object, is merely to gain his own cause, and who may or may not feel interest enough to endeavor to establish it. His feelings and character may therefore be grossly injured without the possibility of redress.

2. That all questions, the answers to which tend to disparage a witness, should be overruled by the court; for, if the subject of the question is known, it may be proved by others; and if unknown, the witness is tempted to perjure himself, and thus preserve his character. But, if he acknowledges what is insinuated against him, then he establishes his veracity, instead of destroying it; because a person who will not be guilty of falsehood for his own sake, can hardly be supposed willing to practice it for the sake of another.

3. That personal questions, addressed to the witness relative to his private affairs, should not be put until the examiner has made it appear probable, that the ends of justice cannot be obtained without an answer to them.

4. That witnesses should never be examined under oath, but each witness should be affirmed under the pains and penalties of perjury. There could then be no objection to the competency of atheists; nor of children, however young; but the credit of the witness, in every case, would be left where it ought to be left, with the jury, and-crimes, which may now go unpunished on account of the inadmissibility of certain testimony, would then be subject to legal animadversion.

fn1. A court of nisi prius is a court that tries questions of fact before one judge and, in some cases, a jury. In the United States, the term ordinarily applies to the trial level court where the case is heard by a jury, as opposed to a higher court that entertains appeals where no jury is present.

Continued in CHAPTER VII: Of the mode of obtaining redress for any infringement of civil or political rights, committed either by the officers of the General Government, or of any of the State Governments.

See the other parts of this series:
RIGHTS OF AMERICAN CITIZENS: General Rights; Division One
RIGHTS OF AMERICAN CITIZENS: General Rights; Division Two
RIGHTS OF AMERICAN CITIZENS: General Rights; The Social Compact
RIGHTS OF AMERICAN CITIZENS: The Powers delegated to the General Government in the Federal Constitution
RIGHTS OF AMERICAN CITIZENS: Powers delegated to the State Governments
RIGHTS OF AMERICAN CITIZENS: The Independence of the States
RIGHTS OF AMERICAN CITIZENS: The rights reserved to the people of the United States
RIGHTS OF AMERICAN CITIZENS: Of the right of suffrage and of elections
RIGHTS OF AMERICAN CITIZENS: The Liberty of Speech and of the Press
RIGHTS OF AMERICAN CITIZENS: The Power of Courts to punish for Contempts
RIGHTS OF AMERICAN CITIZENS: The Law of Libel in relation to Public Officers
RIGHTS OF AMERICAN CITIZENS: The mode of obtaining redress for infringement of civil or political rights


know-your-legal-rightsThe Rights of an American Citizen: With a Commentary on State Rights, and on the Constitution and Policy of the United States by Benjamin Lynde Oliver published 1832


CHAPTER V: Of the Rights of Juries.

Wherever the trial by jury has been introduced, it has usually furnished a theme for unqualified admiration, on account of its wisdom, impartiality, and justice, and because it is thought to furnish the best security for the citizens, or subjects of the government, against public and private wrongs.

Its wisdom is apparent in this, that it is admirably contrived to render the people satisfied with the administration of justice. For, where a case goes to the jury by the common law, as it almost always may at the discretion of the defendant, no judgment can be given against any person either in a civil or in a criminal trial, unless after a verdict has been rendered against him, by them. Now, since all men of decent characters are qualified to serve on a jury, a few only being exempted or excluded from motives of public convenience or policy, or on account of the nature of their usual occupations, whether public or private; and as the jurors are commonly drawn by lot in each county, at regular periods, for the decision of causes arising within it, every qualified citizen has a chance of being called upon to serve in this office, and, consequently, to decide upon the law disputes of his neighbors, as well as upon all criminal charges prosecuted by the public. The people are aware of this, and are better satisfied to have their causes, or the question of their guilt or innocence of any such criminal charges, decided by men of the same rank, condition, and means of information as themselves, than they would be with the decisions of any judges, however learned and wise, the justice of which decisions they would seldom be able to perceive, because they would not readily understand or feel the weight of the reasons, which those judges would assign for their decrees.

Its impartiality is secured by the manner, in which the jurors, who are to constitute the jury for the decision of each cause, are designated. For, the jurors names being usually drawn by lot, it is impossible to ascertain any considerable time before the trial, what persons will be returned to serve on the jury during the session of the court, or, out of that number, what individuals will be impaneled to serve in any particular trial. Consequently, it would seem impracticable for a party in a cause, or a prisoner on a criminal trial, to procure any particular individual to be returned as a juror, or to be impaneled on the jury. But, as it sometimes happens, that a person returned to serve on the jury, when the court directs a jury to be impaneled for the trial of a particular cause, is supposed by one of the parties not to be impartial, the law permits either party in a civil cause, to challenge any of the jurors, and have them removed from the jury box and others returned in their room, if he can assign any reasonable cause, why the jurors challenged, may be thought to be more likely to favor the party, who does not challenge them. Further, as no one who considers himself as having justice on his side, would be willing to have his case tried by persons, who were not men of fair character, every litigant has a right to challenge a juror, if he has been guilty of any infamous crime. This however he should be very cautious in doing; for, a challenge of this kind is not to be made lightly. As a matter of prudence, the suitor making it, ought to have the record of conviction in his pocket at the time; for, he has no right to put the question to the juror, or to examine him in relation to any matter, which may either charge him with a crime, or with misbehavior, or expose him to shame or disgrace, in order to challenge him as a juror. See 1 Sal. 153.

In capital trials, by the common law, the prisoner has a right to challenge thirty-five jurors in succession, peremptorily, and without assigning any reason whatever for it. This indulgence is shown, that the prisoner may not be tried for his life, by any person whose appearance or character he may dislike, though such dislike may be the effect of mere prejudice, whim or caprice ; and besides these thirty-five he may challenge as many more, as he can assign sufficient reasons for challenging.

The trial by jury is therefore well calculated to do justice between the parties, in criminal trials as well as civil causes. But, besides, the jurors being taken from the great body of respectable citizens, and consisting of so large a number as twelve, one or more of them will be likely to be acquainted with all the general modes of business, the habits and practices and customs of society, as well as with the views and feelings of persons in the same class or business, with the parties in the case before them; they will therefore be well able to determine equitably and justly between them, as to the subject in dispute, the value of properly, the extent of injuries, &c.

In protecting the citizens from private wrongs, the lawful power of the jury, in assessing damages for injuries committed, is particularly observable. For, here they have a right to take into view, not only the amount of damage which the injured party has sustained, which is the least sum for which a jury can ever justifiably find a verdict; but, if the injury is of such a nature, that public policy particularly requires that it should be prevented from taking place again, the jury will be well warranted in giving what are called exemplary damages, as a warning to the defendant as well as to all ill-disposed persons in general.

The operation of this mode of trial in protecting the citizens from any species of public wrong or oppression, may be illustrated by numberless imaginary though not impossible, cases; e. g. suppose an unconstitutional and oppressive law to be enacted either by congress, or by the state authority, which however the courts, for whatever reason, see fit to sustain, if the jury were satisfied that such laws were unconstitutional and oppressive, they would have the power and the right, and, not only so, but it would be their solemn duty to acquit any prisoner, who might be charged with an offence against such law.

But in order to form a just estimate of the value of the trial by jury, it will be necessary to descend to further particulars. It is intended, therefore, in the course of this chapter, to consider the right and power of the jury in relation to their verdict: 1, in actions for breach of contract; 2, in actions for wrongs done maliciously, fraudulently or forcibly; 3, in criminal prosecutions. Before proceeding to these particulars, however, it may be proper to remind the reader, that it is a general rule applying to all cases which are the subject of a jury trial, that it is the province of the jury to ascertain all facts upon which the decision of the case before them depends, while the law of each case is to be determined by the court. It is therefore considered the duty of the jury, to make up their verdict from the evidence exhibited to them at the trial, under the direction of the court as to the law applicable to the case. The law on this subject is thus laid down in Plow. Commentaries, 114. ‘It is the business of the jury to inquire of matters of fact, and not to adjudge what the law is; for that is the office of the court. ‘And, if the jury should find all the facts, and should further find that the law is so, when it is not so, the judges shall decide according to the matter of fact, and not according to the finding of the jury. For, the verdict will be good as to the fact found, but void as to their conclusion.’

But, as it sometimes happens, from the fallibility of human reason, from which experience has shown, that the most able judges are not always exempt, that the law is incorrectly charged to the jury; and as it is obvious, if the error is in a material point, and the jury are governed by the charge, they will give their verdict for the wrong party, and, in this manner, injustice will be done to him, this general proposition must be subject to some restrictions. For, there appears to be an analogy between the right of the jury to decide as to the facts from the testimony of the witnesses, and their right to form their opinion, as to so much of the law as is necessarily involved in a general verdict, from the charge of the judges. For, the duty of the jury requires them to bring in a verdict according to the law and the evidence in each case. In making up their verdict, therefore, so far as the facts are concerned, they are morally bound to believe the testimony of those witnesses whom the Court admit as competent, subject to these conditions : 1, that the facts sworn to, are not improbable; 2, that the testimony of the witness is consistent with itself; 3, that it is not contradicted by any other witness; 4, that it is not contrary to what the jury themselves know to be the fact; for, it is settled that the jury may give a verdict on their own knowledge, though regularly every juror, having a knowledge of any facts, ought to communicate it to the Court and be sworn. 5. That there is nothing in the appearance or manner of the witness in giving his testimony, to lead the jury to distrust his truth or sincerity.

7th-amendmentAs the jury therefore may find the truth of facts on their own knowledge, and ought by no means to find a verdict contrary to what they know to be the case; so, as to the law, though they are bound to receive what the judges charge them, as the law by which they are to be governed in making up their verdict, so far as it is applicable to the case before them, yet this must be subject to the restriction, that they the jurors, do not know the law to be otherwise. In most cases, it is true, the jury are wholly incompetent to determine, without the assistance of the Court, what the law is in relation to the case before them. They have a right to presume therefore from the circumstance of a judge’s appointment to office, and his learning and experience, that his charge is correct, unless they know or conscientiously believe to the contrary; and, if he should be incorrect, and the jury, confiding in the correctness of his charge, should bring in an erroneous verdict, no blame can ever rest upon the jury; since they have merely placed a proper confidence in the knowledge of a person, whom society or the constituted authorities of it, have appointed to be an official expounder of its various laws and ordinances. But this will not hold good, where the jury know the judge to be in an error, or what comes nearly to the same thing, where they are thoroughly convinced and conscientiously believe, that he has charged the law incorrectly. And, even in the cases, where the party injuriously affected by the verdict, may have a right to appeal; still, this circumstance will not discharge them from the strictest responsibility for the correctness of their own verdict; because the law confides, that in every stage of a cause, each individual, officially concerned in the administration of justice, will do his duty scrupulously and punctiliously, without relying upon higher tribunals to correct his mistakes. Besides, those who have a legal right to appeal, do not always find themselves in convenient circumstances to exercise it.

1. Of the power and right of the jury, in making up their verdicts in civil actions for breach of contract.

In actions brought for a breach of contract, where the performance consists in the payment of a precise sum of money, if the jury are satisfied that there has been a legal contract, which has not been performed, and no satisfactory excuse for non-performance is proved, they are bound to find a verdict for the precise sum due on the contract. Here they have no discretion whatever, and, if they should find a verdict for either more or less, the Court would set aside the verdict, and grant one or more new trials until this precise justice was done, unless it was adjusted by the consent of the parties.

Where the breach of contract consists in a failure to deliver certain goods or merchandize, the jury would have rather more latitude for the exercise of their discretion. For, though they would be bound to assess the damages at the true value of the goods, this of course must be understood as binding the jury according to the conscientious opinion of the jurors. But, as there would not be the same precise standard of value, in this case, as in the preceding one, and, as they might form their valuation upon the testimony of different witnesses, who did not agree precisely, the jury would have a legal right to adopt any valuation for the goods, between the highest and the lowest value, sworn to by the witnesses. But, if they should go beyond those limits on either side, and it could be made to appear to the court, the verdict would be set aside here also, and a new trial granted.

2. Of the right and power of the jury in civil actions for wrongs done maliciously, fraudulently, forcibly, or carelessly.

In these cases, the jury have a still greater latitude in assessing damages. But, where property is maliciously or wantonly destroyed, their verdict cannot, consistently with either law or conscience, be for a less amount than its value; though, if there are any circumstances of peculiar aggravation, the jury will be warranted in law to assess a far greater sum. For, the rule in all cases of personal wrongs is, that the jury may decide at discretion upon the amount of damages, with no other restriction, than that they must not be absurdly small nor enormously large. For, in either case, it is not to be doubted that the courts will grant a new trial for the purposes of justice. This power in the courts however will very rarely be exercised, because the design of it is not, to interfere with the power, which the law bestows on juries, of assessing damages for injuries at their discretion; but it is intended to secure to the suitors the honest and conscientious exercise of the discretion of the jurors, and to protect the parties from the effects of partiality, prejudice, passion, weakness of understanding, corruption or mistake in the jury, to one or the other of which, an absurd and unreasonable verdict, if to a very great excess, must necessarily be ascribed, and for which, it would be a disgrace to the law to suppose it had furnished no remedy.

While on this subject it may not be amiss to remark, that the reason of the law in some cases of actions for wrongs, seems to be misapprehended, as it is sometimes applied. For, in such cases, and even where an injury has been done maliciously, testimony is sometimes admitted to show that the wrong-doer has but little property, as if this circumstance afforded an extenuation.

But, it must be apparent, in such cases, that the jury cannot consistently with their oaths, ever give a verdict for less than they conscientiously believe to be the amount of the damage, which the plaintiff sustains by the malice, or even carelessness of the defendant, whether the defendant has sufficient estate to respond damages or not. And why should the defendant be in a better situation than he would be, if he had given a promissory note, and through misfortune, had become unable to pay it? In that case, the jury would not reduce the amount of the damages, merely because the defendant had not property enough to pay the whole. But, in the case of any wrong, there is still less reason for any such reduction. In cases of contract, a man must always take the chance of the insolvency of the person with whom he deals; and, though he should never be paid, still he parts with his property voluntarily and takes that chance. But, when one man destroys the property of another, it cannot be pretended that the owner voluntarily gave it up, or consented to run any risk whatever. Being under the protection of the laws of society, he has a right to insist upon having damages for the full amount which the jury shall conscientiously believe to be its value; for, though the wrongdoer may not, at that time, have sufficient property to satisfy the whole judgment, it is very possible that he may have enough at some future time. But, the true reason, it is believed, why such testimony may sometimes be received, is because, if the defendant were very rich, and had committed the injury from jhe insolent recklessness of consequences, which is sometimes seen to accompany the consciousness of being able to respond large damages without difficulty, the court would direct the jury to assess such exemplary damages, as the wrongdoer would feel, and as would serve as a warning to others. The defendant, therefore, upon any surmise that he had acted from any such motive, would be permitted to prove that he did not possess much property, in order to show, that he was not a fit subject from whom to require exemplary damages; but never for the purpose of reducing the damages below the amount of the injury really sustained.

In cases of slander, libel, seduction, assault and battery without any mitigating circumstances as to provocation, oppression of any kind accompanied with an abuse of an authority given by the law, or any contumelious wrong whatever, the jury would do well to make the case of the injured party their own, and not by a mistaken sympathy for a disturber of the public tranquility, add wrong to wrong, by giving a verdict for insufficient damages. For, the ill consequences of such a verdict, are very great; because it does not furnish the redress to which the plaintiff is entitled, but on the contrary injures his character, and lowers him in the esteem of others. It tends also to bring the administration of justice into contempt. Lastly, it leads to violence and injustice two ways; because, others seeing the impunity of the defendant, will not be deterred, but on the contrary will be encouraged in committing similar wrongs and outrages; while the sufferers, seeing that they can expect no adequate redress from the tribunals of the law, will resort to direct violence to revenge them.

3. The right and power of the jury as to their verdicts in criminal prosecutions, &c.

In criminal cases, the trial by jury is intended to afford to the person accused, not only a fair trial, whether innocent or guilty; but it is intended also to furnish, in an especial manner, every reasonable protection against the possibility of being convicted unjustly. Where therefore the jury consists of individuals possessing only a moderate share of abilities and knowledge of mankind, and such a share of integrity as is sufficient to resist the temptations, which may possibly be offered to induce them to pervert justice, if they will pay a proper attention to the proceedings before them, there can be but little probability, that innocence will ever suffer the penalty of criminality, or that legal guilt will ever escape with impunity.

To illustrate the justness of this remark, it will hardly be necessary to do more than allude to the certainty, which is required in the indictment, in describing the criminal charge, without which the prisoner cannot be convicted, even if the jury should give a verdict against him; (See the case of Mr. Rosewell, Infra 😉 the challenge of the jury with cause; or, the peremptory challenge, without cause, before mentioned; the inadmissibility of all proof of confessions drawn from the prisoner by promises of favor, or by threats of any kind; the presumption of innocence, with which the law protects the prisoner, and renders it unnecessary for him either to justify, excuse or in any way exculpate himself, until a strong presumption of his guilt, is raised against him by the testimony of witnesses under oath; and lastly, the humane principle, that even if such strong presumption should be raised in the first instance, if the prisoner can, either by other testimony, or by inferences drawn from circumstances satisfactorily proved, or by comparison of facts and conclusions, raise only a reasonable doubt, whether after all, he may not be innocent, the jury, according to the legal understanding of their oaths, will be bound to acquit him. By the English law, which is generally adopted in this country, a general verdict in criminal cases, must be either guilty or not guilty. By the law of Scotland there are three verdicts, viz., guilty, not guilty, and not proven. The last is given in, when there is not sufficient evidence to warrant the conviction of the accused, but the jury entertain doubts of his innocence. In such case, by the common law the jury are bound to acquit. If juries could always be depended on to make a proper distinction in their verdicts, perhaps this must be considered as an improvement on the common law.

It was on a humane principle, though sometimes barbarously abused by arbitrary judges in unsettled times, that the ancient common law did not allow prisoners counsel in capital cases, unless some matter of law, not already settled, should arise upon the facts found. It was supposed they could not need it for the facts; for, it was held, that if the evidence against them was not so clear, as not to be rebutted by any argument, they ought to be acquitted. Where the law applicable to the case, admitted of no doubt, it was the duty of the judges to be of counsel for the prisoner, i. e. to take care to give him notice of every fair advantage he might take, in challenging the jury, &c., and in general to take care that he should not be improperly convicted.

But, on account of the apparent hardship, and the occasional abuses which sometimes took place, the law has been altered. At this day, prisoners both in England and in this country, are permitted to retain what counsel they please, and in capital cases, poor prisoners have counsel assigned to them, on request, by the court.

To return; it is not enough, that the jury, after hearing all the testimony of the witnesses, the arguments of the public prosecutor, the defence of the prisoner both by himself and his counsel, and lastly the charge of the court,—are fully persuaded in their own minds that the prisoner is guilty; it is not enough that the jury, by their own natural sagacity, or, by the ingenious comparison of circumstances by the public prosecutor, are come to this conclusion. For, an opinion that the prisoner is guilty, thus formed, will hardly authorize the jury to find a verdict against him.

It is true, that it is the height of practical sagacity and wisdom, to be able to draw correct inferences from minute circumstances, which escape the observation of dulness,—from a partial view of facts, where it is impracticable to ascertain the whole truth; from premises wholly inadequate to the purposes of demonstration; this however, is only to be considered as a matter of prudence and caution for our own security; but, it would be the greatest injustice to apply such wisdom and sagacity, to the purpose of convicting a prisoner on merely probable surmise, when, according to the true intention of the law, guilt must either be proved to a moral certainty, or, otherwise, must be allowed to escape with impunity. For,

Why is guilt punished at all? Is it not, for the sake of the security of the just? But, unless guilt is demonstrated, then it is possible, that innocent men may unfortunately fall into the same circumstances with the individual convicted, whether he be guilty or innocent in fact, and may have the same arguments from circumstances urged against them, and consequently, in the same way, may be convicted and punished. It is plain, therefore, that where even a guilty person is convicted and punished, without conclusive proof of his guilt, innocence itself is endangered, and the security of good men is not obtained.

In civil actions, if the jury should give a verdict, contrary to the evidence, that is to say, without any apparent evidence at all to support it, (for, it is not enough that it is found against the weight of evidence,) the court will set aside the verdict and grant a new trial. But the jury may give a verdict contrary to evidence if they see fit. See Plowd. 8. Holt, 404. Vaugh. 147.

So, in a civil action, if the jury should give a verdict, contrary to the direction of the court in matters of law, the court will set aside the verdict, and grant a new trial. But, as there are no new trials in criminal cases, if the jury should give a verdict, either against law or evidence, and notwithstanding the instructions of the judge, before it was recorded, to reconsider it, should persist in it, the verdict must stand, and there is no power to call the jury to account for it.

Since therefore this power is confided to the jury, it may not be amiss to consider what is their right and duty in this class of cases. This subject will be most conveniently illustrated by selecting a particular one. Suppose A to be indicted for a crime, and pleads not guilty, and after the witnesses for the prosecution are examined, he or his counsel argues to the court, at the same time requesting the attention of the jury, (as Home Tooke was permitted to do, on his trial for a libel before Ld. Mansfield,) that the facts testified to, do not amount to the crime charged. Suppose that the court charge the law to the jury contrary to the prisoner’s argument; here the jury, if they are satisfied of the truth of the facts, and take the law to be as charged by the court, will be bound to find the prisoner, guilty. If they doubt, or cannot agree with each other, whether the law is correctly charged by the court; or, if they have any mistrust of themselves, that they shall not be able to apply the law correctly to the facts, they may find a special verdict, and thus submit the question of the prisoner’s guilt, to the decision of the court. But if, after hearing the prisoner’s argument, and the charge of the court, the jury should be clearly of opinion, that the law is according to the argument, and the judge’s charge is wrong, it will be jheir duty to acquit the prisoner. If, in such case, they should find a special verdict, they would hardly do right, since they must be pretty sure the prisoner will be convicted, and yet, according to their own opinion, or rather according to the convictions of their own understandings, he is not guilty. If they should ask the court for further instructions in such case, before they made up their verdict, as they ought to do, because perhaps a few words of explanation from the judge will remove the difficulty in their minds, and they should still feel convinced, that the judge did not charge the law correctly, but, from a deference to his opinion, should find the prisoner guilty, they would violate their oaths.

If a barbarous or arbitrary law should be enacted, as for instance, if it should make mere words sufficient to constitute an act of treason, and any person should be indicted on such act, it would be the duty of the jury to acquit the prisoner, if, as in the case supposed, the law were unconstitutional; or, what is the same thing in effect, if the jury conscientiously believed the law to be unconstitutional, however it might be charged by the court. It is in this sense, probably, that the remark of Fortescue is to be understood; ‘that the jury are not bound by the determination of the House of Commons, nor by any law in the world but their own consciences.’ Fort, de. Laud. 117.

A distinction however may be taken here. 1. If the law were made to punish a man for doing anything, which it is his duty to do; or, which it is morally wrong to prevent him from doing; or, for not doing anything, which he ought not to do, the law would be wicked and tyrannical, and such as no government has a right to make; and therefore the jury would do well in refusing to assist in enforcing any such law. 2. If the law should prohibit any thing, which a man would have a right either to do, or to omit, if not prohibited; or, command any thing to be done, which, if not commanded, any individual would, in like manner, have a right, either to do or to omit, and such law is not contrary to the constitution, though the penalty is excessively severe and out of proportion to the offence, still, the jury, in case of an indictment for a violation of it, will be bound by their oaths to convict a person who is guilty of such violation. They have nothing to do with the punishment.

With greater reason they will be bound to convict a person, who has committed an act wrong in itself, in violation of a law which prohibits such act, however severe the penalty may be.

The right of a jury to give a verdict, contrary to the opinion of the court on a point of law, can exist only, where they are fully satisfied that the court is in an error. For, if not thus satisfied, they ought to receive the judge’s charge as correct. But, each juror ought in all cases, especially in capital ones, to act according to the dictates of his own conscience, and on his own moral responsibility in making up his verdict. The prisoner in a criminal case, and the parties in a civil action, are entitled to ‘the exercise of his judgment, unbiased by any consideration, that is not grounded either on the evidence in the case, or the law applicable to it. The jury in no case have a right to decide their verdict by drawing lots; it is always a misdemeanor, (see 1 T. Rep. 113) to do it in a criminal trial would be inexcusable; and in a capital trial would in fact be murderous ; because in this way an individual might be put to death, without any real consideration of his guilt or innocence. It is held, that if they cannot agree upon their verdict, they may agree to find their verdict according to the vote of the major number. See Says. R. 100. 1 Stra. 642. This however must be restrained to verdicts in civil actions, and can hardly be justified in law even there. For, the law requires unanimity in a jury, as a test of the truth and justice of their verdict. It means therefore unanimity brought about by discussion, and the exercise of the understanding. But, the unanimity brought about by putting the subject to vote, is an evasion of the law ; for, this is not brought about by the exercise of the understanding, and it renders the verdict of the majority effectual, which at law would be wholly unavailing.

It has been held, that a jury may give in a verdict contrary to evidence. See Plow. 8. But, this is because it might be supposed, that they formed their verdict on their own private knowledge of facts. But a juror, who should thus bring in a verdict in either a civil action or in a criminal prosecution, would act improperly at least, and perhaps might occasion great injustice. In a civil action, if the jury should bring in a verdict grounded solely on their own private knowledge, ft might appear to be given contrary to, or, without any evidence, and, if the court were of that opinion, it would be set aside and a new trial granted. If there was evidence given on both sides, the verdict would appear to be given contrary to the weight of evidence, and, in this way, though a new trial would not be granted, yet it would tend to bring the administration of justice into disrepute. The same consequence would attend the conviction of a person indicted for a crime, on the private knowledge of the jury. A greater injury however is done here; because the prisoner is convicted on evidence which does not appear on the trial—evidence, of which he has no notice, and consequently has no opportunity to answer. The duty of a juror, who has a knowledge of any material facts, would therefore seem to be, to give notice of it, especially in a trial for a capital offence, so that he may be sworn, and the prisoner may have an opportunity of explaining away his testimony, and perhaps convincing that very juror that he is in an error. It would seem, also, very proper in the jury, in general, if one of their number should attempt to influence the rest by appealing to his own private knowledge of facts, to give notice to the court of the circumstance; for, otherwise, the accused party does not seem to have a fair trial. But, it is held that where a person is about to be sworn on a jury, who has material evidence to give in the case, he ought to inform the court of it, before taking the oath. Sal. 405.

No juror ought ever to agree to bring in a verdict of guilty, against a prisoner, unless he is completely satisfied of his criminality. Though the other eleven are agreed, if their reasonings do not convince him, and he should out of deference to their judgment, though sanctioned also with the opinion of the court, consent to such verdict, the prisoner’s blood, if innocent, will rest upon that juror’s head, and upon his alone; for, the rest conscientiously believe the prisoner guilty, according to the best exercise of their judgment; but he convicts, while he doubts the prisoner’s guilt, and therefore violates his oath, neglects his duty and betrays his trust. Neither ought a juror ever to consent to find a verdict against a prisoner from the expectation, that he will not be capitally punished. For, the substance of the verdict of the jury, when they find the prisoner ‘ guilty,’ is, that he is Proved to be guilty; but, where they find him, ‘not guilty,’ the only rational meaning of the verdict, is ‘that he is not proved to be guilty? though the law permits it to be considered as a proof of innocence, so far that he shall never be tried again on the same charge, though conclusive -evidence of his guilt should afterwards be discovered. If the jury cannot agree, they will be discharged after the court have kept them together long enough to ascertain, that there is no probability that they will agree.

On the other hand, if the juror is completely satisfied of the prisoner’s guilt, and can trace that conviction to the effect of the testimony which has been given on the trial, he ought to find him guilty; without regarding those vain scruples, which sometimes afflict men of great sensibility, when discharging the plainest duty, that though they are fully satisfied, after the most careful scrutiny, yet perhaps they may be in an error. In such case, they should remember, if they are in an error, it is because they are fallible creatures, and not because they have not taken proper pains; but no man can be accountable for any thing more, than the honest exercise of such an understanding as nature has given him.

In all cases, both civil and criminal, if all the jury are satisfied and agreed, as to the facts of a case, but cannot agree as to the law, so that they are unable to make up their verdict, they have a right to call on the court to give them further instructions and explanations as to the law, to enable them to do so; or, they may bring in a written statement of all the facts in the case, which will be reduced into proper form for them by the counsel in the case, under the direction of the court, and conclude with submitting to the decision of the court what their verdict ought to be. By this special verdict finding all the facts, the final decision is submitted entirely to the court; so that if, after finding all the facts, they should conclude by giving a general verdict in favor of one of the parties, or of the prisoner as the case might be, the court would reject the conclusion as void, and would determine for themselves on the facts found in the verdict.

After the jury are agreed, and the foreman has delivered in the verdict, and the jury are asked the final question ‘so you say all, gentlemen,’ any juror may then dissent, if he has any scruple arise in his mind, and the court will then send the jury out again, to see if they can agree. And whatever their first verdict may have been, they are entirely at liberty to alter it as they see fit. This power they retain until their verdict is recorded. And therefore, where two were on trial for a conspiracy, and the jury came in with a verdict of guilty, against one, and were sent out again, because one alone cannot be guilty of a conspiracy, and on their return again, found both guilty, the verdict was held good. See Plowd. 212.

But, after the trial is over, and the verdict is once recorded, there seems to be no remedy, even though they have made a mistake in their finding, and make an affidavit to that effect. For, all mistakes ought to be corrected at the time of trial, and before the verdict is recorded. See 2 T. R. 282. If any alteration should be allowable after the jury had once been dismissed, it would furnish too many opportunities to attempt to tamper with them. It is for this reason, that all representations of jurors, contrary to their verdict, have been censured. See 3 Bur. 1696. This however does not apply to recommendations for mercy, made by the jury after conviction.

Jurors should be careful to attach no weight whatever to suggestions, made as to the probability or improbability that a prisoner, if convicted, will be punished. Their concern is with his guilt or innocence alone, and that question it is their sworn duty to decide, without any reference to the question, whether he will be punished or not, or, what his punishment may be. In a capital case, within the recollection of the present writer, the public prosecutor expressed an opinion in the course of his argument, that the prisoner, if convicted, would not be punished capitally; and the jury found him guilty; but afterwards, eleven of them sent a representation to the Governor, stating that they should not have found him guilty, if they had expected he would be punished capitally, &c.; but their petition was not granted, and the prisoner was executed.

The grossness of such conduct in the jury, is manifest from the consideration, that, unless it can be supposed, that they knowingly brought in a false verdict against him, for whatever reason, they would have found him not guilty, when in their consciences they believed him guilty, merely because they were unwilling, that he should suffer the punishment prescribed by law for the crime proved against him.

With regard to the efficacy of the trial by jury in protecting the citizens from public wrongs, whether consisting in the operation of laws grounded solely in usurpation, or, upon an abuse , of a legal authority; or, consisting in acts of arbitrary power committed by persons in authority, but without any legal warrant, it may be further remarked, that, if acts of oppression should be practiced upon an individual under pretense of a lawful authority, and an action should be brought for the injury, if the oppressor were a person of great political power or influence, it might happen that any one or two individuals, if they had the judicial power of deciding between the parties without the intervention of a jury, might be too much overawed and intimidated by the wrong doer, to do strict justice between them. But an independent jury in any such case, would make the plaintiff’s case their own ; and keeping in mind the principle, that, where one citizen is oppressed, all are threatened, would take care to give a verdict against the defendant, for such exemplary damages, as would teach him, however high his rank might be, that the law is above him.

If the sovereign political power should fall into bad hands, and an attempt should be made to crush all those who were obnoxious to them, by the enactment of highly penal and unconstitutional laws, against acts wholly free from moral turpitude, and only prohibited, because all freedom is dangerous to usurped power, it would be the duty of the jury, by their verdict of acquittal, to rescue the persons accused, and show their detestation of tyranny and oppression.

If the time should ever arrive, when the members of the judiciary shall be dependent for their offices upon the other departments of government, and those other departments shall abuse their authority to violate the constitution, and crush such of the citizens as shall oppose their schemes; and, to carry their designs into effect, shall appoint to judicial offices such of their own adherents as will co-operate with them, by harsh and arbitrary misconstructions of penal laws, it is then that the excellence of this mode of trial, ought to be seen and felt as a guardian and protector of civil and political rights. How far is this supposition justified by the history of the past?

jury_1In the first year of Charles II. while public affairs were controlled by Cromwell, Lieut. Col. John Lilburne was indicted for high treason for publishing certain books and pamphlets, reflecting in the strongest manner upon that usurper. On his trial he made a very bold and eloquent defence, and though the court were unanimous against him, and seemed very desirous that the jury should convict him, yet he was unexpectedly acquitted, to the great joy of the people, who, it is said, shouted for half an hour without intermission, to the great terror of the judges. Within three years afterwards he was banished by a resolve of the Parliament, under pain of death. He was at the Parliament door the day after this resolve was passed, and was ushered into the bar, by the Sergeant at arms. The speaker of the house twice commanded him to kneel to receive his sentence, but he replied that though he submitted to their sentence, he neither could nor would kneel. Being then sent out, he told the Sergeant to inform the speaker, that when he should be brought up to receive his sentence, he should not kneel, if they should order the sergeant to beat his brains out with the mace; because such a gesture seemed to imply a consciousness of guilt. He returned from banishment, and was indicted for it capitally, on the resolve or act of Parliament, and was very unfairly used on his trial, but making an able and eloquent defence, he was again acquitted by the jury. The Parliament seem to have been greatly incensed at this, and passed an order to examine the jurors, and make them give an account of their verdict. They were accordingly examined separately, and their answers were generally such as became men of integrity. The foreman’s answer in substance was, ‘that, in what he did, he discharged his conscience, and that he would give no further answer as to the grounds of the verdict, for reasons best known to himself.’ Four of them answered, ‘ that they did it to satisfy their consciences,’ &tc. One answered, ‘that he was not bound to give an account of what he did in that business, but to God himself.’ Two of them said, ‘that notwithstanding the court told them they were judges of the fact only, they considered themselves judges of the law also.’ One doubted, whether John Lilburne, named in the act of Parliament, was the same John Lilburne, who was indicted, having never seen him before, &c.

It was soon found, therefore, that jury trials were not so much under the control of the powers of the government, that favorable results could always be depended on with confidence, even when the influence of the government was seconded in the strongest manner, by that of arbitrary and prejudiced judges. Yet, it is not to be wondered at, if in times preceding the revolution in England, when James II. abdicated or was dethroned, and William and Mary succeeded, the trial by jury was found a very inadequate protection for innocent persons, who had fallen under the displeasure of the court. For, in those times, the fairness of the trial depended almost entirely on the presiding judges, because they exercised a power over the jury, that has long since been done away. The jury therefore, being overawed by the judges, who sometimes did not hesitate to threaten those of the jury, who would not agree to such verdicts as they required, were often induced to convict persons of crimes, which were not sufficiently proved. For, how could a jury, who were not well acquainted with the law, who were exposed to the highly penal and infamous punishment of an attaint, for a false verdict, or, as it has sometimes been held, for a verdict contrary to the opinion of the court; and, beside that, who were liable to be kept without food and refreshment at the discretion of the court, if they did not agree, as also to be carried round the circuits in a wagon to attend the court until they did agree, exhibit the same independence as in later times, when all these absurdities are done away? Yet, though they took the further illegal advantage of controlling the sheriff in the return of the jurors, as sometimes was done by Cromwell, it so happened, by means of the prisoner’s challenges, and because the character and opinion of every individual juror could not be certainly known to the sheriff, that, even in the worst times, there would occasionally be found one or more jurors, too honest and independent, to be either corrupted or intimidated, into a false and iniquitous verdict.

It was in consequence of such disappointments, as it is presumed, that very soon after Lilburne’s first acquittal in 1650, it was thought a politic expedient to create new courts with the style of high courts of justice, which had authority and was made use of, to determine cases of treason, &c. without the intervention of a jury. Under this tribunal, though the number of commissioners amounted to forty, there seems to have been no difficulty in convicting any person on almost any kind of evidence, as a quorum consisted of seventeen, and the opinion of the majority was decisive. The proceedings were arbitrary and cruel, to a high degree. The first high court of justice, however, was erected for the trial of Charles I. and gave rise to the rest.

Among those who suffered capital punishment under this tribunal, and whose guilt is not satisfactorily made to appear, because they had not a fair trial, were Col. Andrews, Ch. Love, J. Gibbons, Dr. Hewit, Sir Henry Slingsby, and many others. John Mordant was acquitted, there not being a majority of the judges against him, and some being bribed. After the restoration of Charles II. the trial by jury was again permitted in such cases. But here the trial by jury was again found insufficient to protect the innocent, on account of the unfairness with which it was usually conducted in the time of Ch. Jus. Jeffries. Certainly it was a rare instance, indeed, when one indicted before the court of King’s Bench, escaped, while this judge presided. He seems almost invariably to have had a strong bias against the prisoner, from the beginning of the trial; and being a man of great abilities, and assuming the part of king’s counsel and uniting it with the authority of chief justice, he generally refuted or silenced the arguments of the prisoner, and overawed or convinced the jury with equal ease, whether there was or was not sufficient legal evidence of guilt. In illustration of these remarks, one or two instances may be given. In 1681 Stephen College was indicted for high treason, and, if allowance were not made for the age, the perusal of his trial, would be sufficient to give any one a distaste for the trial by jury. Because it seems impossible not to come to the conclusion, that he was the innocent victim of perjury in the witnesses, cruel and barbarous oppression in the court, and gross servility or excessive stupidity in the jury.

In the trial of Count Coningsmark and three others in the same year, for murder, in which there seems to have been no doubt that Coningsmark was the instigator, and that the act was perpetrated by one of three others in the presence of the rest, by his procurement, the Ch. Jus. Jeffries, for whatever reason, was resolved to save Coningsmark from conviction. For this purpose, evidence was withheld from the jury which would have tended to clear some of the prisoners, but would have endangered the Count. But no one can read the trial and doubt his guilt. In order to favor him the more, after the testimony was closed two of the prisoners who were foreigners and did not speak English, were not asked what they had to say in their defence, from an apprehension that it might lead to the Court’s conviction. The jury therefore found him not guilty; but the three others were convicted and executed, one of whom, it is not unlikely, was innocent, or at least wholly ignorant of the intention of committing the crime of murder.

Joseph Hayes was also indicted for high treason, before that court; there was hardly any thing, which would be called legal evidence, offered against him. He conducted his trial with great boldness and spirit, and, notwithstanding a violent charge against him by Ch. Jus. Jeffries, was unexpectedly acquitted by the jury.

The trial of Thomas Rosewell, a dissenting Clergyman, for high treason, the overt acts of which consisted in delivering two discourses in the presence of a few persons at a private dwelling-house, and which discourses were said to contain the crime of imagining the king’s death, deserves a more particular notice. The indictment against Mr. Rosewell was drawn up in Latin, agreeably to the law at that time. The treasonable words, charged to have been uttered by Mr. Rosewell, without the innuendos to point the application of them, were as follows:

‘That the people made a flocking to the king, upon pretense of healing the king’s evil, which he could not do; but we are they to whom they ought to flock, because we are priests and prophets, who can heal their griefs. We have now had two wicked kings together, who have permitted popery to enter under their noses, whom we can resemble to no other person but to the most wicked Jeroboam; and, if you will stand to your principles, I do not fear but we shall be able to overcome our enemies, as in former times, with rams’ horns, broken platters, and a stone in a sling.’

The witnesses for the crown were three women, whom, Mr. Rosewell, being conscious of his innocence of having ever uttered the expressions charged against him in the indictment, and apprehending that they would swear to the same story if questioned in each other’s presence, requested to have examined apart. This was accordingly done, but they agreed in their testimony in a surprising manner, though Mr. Rosewell cross-examined them with no small ingenuity. There can be no doubt therefore, that Mr. Rosewell did deliver two discourses at the times and places testified to by the women; indeed, Mr. Rosewell never denied so much, and that the words charged in the indictment, were what they supposed Mr. Rosewell to mean.

After the evidence of the crown was closed, Mr. Rosewell, who was a good scholar, requested that the same passage in the indictment, just now quoted in English, should be read to him in the original latin, which was done as follows:

—* Quod populus coadunationem fecere (anglice, ‘made a flocking’) dicto domino regi nunc, sub pretextu sanandi morbuin regni (anglice, ‘ the king’s evil’) quod ipse facere non potest; sed nos sumus illi ad quos illi debent accedere, (anglice ‘ flock to,’) quia nos sumus sacerdotes et prophets, qui precibus dolores ipsorum sanaremus. Nos habuimus nunc duos iniquos reges insimul, qui permiserunt Romanam superstitionem (anglice, ‘popery’) ingredi in eorum conspectu (anglice, ‘under their noses ‘) qui assimilari possunt ad nullam personam, nisi ad nequissimum Jeroboam.—Et si ipsi ad fundamentalia ipsorum permanerent (anglice, ‘would stand to their principles’) ipse non timebat, quin ipsi inimicos suos vincerent, sicut in pristino tempore cum cornubus arietum, patinis fractis (anglice, ‘broken platters’), et lapide in funda; (anglice, ‘sling ‘) &tc.

Mr. Rosewell before beginning his defence, made some exceptions to the indictment; and the following dialogue ensued between him and Ch. Jus. Jeffries.

Rosewell. If it please you, my lord, that which I object against, and desire to be satisfied in by your lordship, is this; I am charged with speaking words about flocking to the king to cure the king’s evil; and it is in the indictment called, ‘morbus regni anglici,’ that is, the disease of the English kingdom.

Lid. Ch. Jus. Jeff. No, no; it is morbus regni, anglice, ‘the king’s evil.’

Ros. I do not understand how ‘morbus regni’ can be ‘the king’s evil.’

Ld. Ch. Jus. Therefore, because there is no apt word in the law for that distemper, they help it up by the word ‘anglice,’ to show what they meant.

Ros. But, my lord, I understand there are proper words for the disease; as struma and scrofula; those are proper words for it; not ‘morbus regni.’

Ld. Ch. Jus. Not at all in law; those may be the words used among physicians; but in legal proceedings, we are to keep up exactly to the legal names and phrases; and where we have not an usual word, then we help it up by anglices, and so we here express that very distemper, which is called by the name of the king’s evil, by a word framed as near to a law phrase as we can; and to show our meaning in it we add anglice, the king’s evil.

Ros. My lord, is that the phrase that is proper for it in law?

Ld. Ch. Jus. Yes, yes; it is very well expressed to show what is meant.

Ros. But, my lord, ‘morbus regni’ is in English, properly, the disease of the kingdom.

Lid. Ch. Jus. It is so; the disease of the kingdom; if they had gone no further, but left it there, it might have had such an interpretation put upon it. But because the words are so ambiguous in Latin, they are reduced to a certainty, by putting an anglice to them.

Ros. I thought it had been ‘anglici.’ My lord, there is another phrase that I object against; k says ‘ nos habuimus nunc duos iniquos reges insimul;’ My lord, this cannot be understood of two kings, one after another; but ‘ insimul’ makes it to be both at once.

Lid. Ch. Jus. No; we have had now together two wicked kings.

Ros. That we do not use to express so in Latin.

Ld. Ch. Jus. The words do thus sound in English.

Ros. There are two words, insimul and nunc, that do signify the’ present time. My lord, I am now only speaking all this while upon the hypothesis, that these words were spoken by me; for I still do, and always must deny the thesis.

Ld. Ch. Jus. We take it so.

Ros. It should have been successive.

Ld. Ch. Jus. Then it had not agreed with your words. For the witnesses swear that you said we have now had two wicked kings together, and not successively.

Ros. If that be an anglicism, this cannot be true Latin.

Ld. Ch. Jus. Nay; if it be a blunder in the Latin, it was a blunder of your making; for you spoke it so in English, and the indictment in Latin must exactly pursue the English.

Ros. Then, my lord, here is another expression, that they suffered ‘ Romanam superstitionem,’ ‘ Popery’ to come in.

Ld. Ch. Jus. Aye; is not that well expressed?

Ros. My lord, there may be superstition in the worship of the Church of Rome, and yet not be the thing we call Popery.

Ld. Ch. Jus. There may so, you say right; but then this comes under the same reason, as the former phrase you objected against,’ morbus regni.’ Because ‘ Romana superstitio,’ is such a general word, and because there are several superstitions in the Romish Church, abundance of them; and this may make it uncertain; and because we have no other word to express what we call Popery by, therefore there is an Anglice put in, to show what is meant.

Ros. Then, my lord, it is said, ‘ in eorum conspectu,’ is that right, my lord?

Ld. Ch. Jus. Yes, Anglice under their noses.

Ros. That is in their sight.

Ld. Ch. Jus. Pray, how would you put that in Latin, under their noses.

Ros. My lord; if I should speak according to the other parts of the Latin of this indictment, which your lordship says must exactly pursue the English, I would render it, ‘ sub naribus illorum.’

Ld. Ch. Jus. Such people suffer conventicles under their noses, ‘in eorum conspectu.’

Jus. Holloway. It is not your nose, that sees.

Ld. Ch. Jus. Suffer rebellion under your noses; are these things, ‘sub naribus,’ or ‘ in conspectu?’

Ros. My lord, this could not possibly be spoken of the late king and this king; when the precedent king died a professed zealous protestant, and his present majesty has so often, and earnestly declared against it.

Ld. Ch. Jus. We know that very well; but yet withal we know, it was the pretence of Popery and arbitrary power, and those things, that brought that blessed martyr to the scaffold; and the great cry now at this day, by all factious and seditious busy fellows, is against Popery; as if it were just breaking in upon us, and the government abetted it; when it is all false, nothing more untrue; the indictment calls it so, says these words are spoken ‘/also et malitiose;’ and all treasons are so.

Ros. Then, my lord, there is another thing, ‘ si ipsi starent ad fundamentalia eorum,’ Anglice, ‘ would stand to their principles or principals;’ for, I know not how it is in the indictment. Pray, my lord, how comes ‘ fundamentalia,’ to signify, ‘principles.’

Ld. Ch. Jus. Their principlesj that is, their foundations or fundamentals. ‘If the foundations are destroyed, what can the righteous do?’ says the Psalmist. The Latin bible expresses it by ‘fundamentalia.’

Ros. Then it is, ‘ si ipsi’ in the third person ; now my lord, in common sense, that must needs refer to the two wicked kings that were spoken of just before, or to the king and his subjects spoken of afterwards; and then sure it cannot be treason.

Ld. Ch. Jus. No; ‘they,’ that is, I and you that are here. It was spoken to your congregation. If they would stand to their principles; then come ‘the broken platters,’ &tc.

Ros. If it were spoken to them and of them, it must have been ‘ you ‘ or ‘ we.’ Then, it is added in the end, my lord, ‘fractis patinis,’ ‘ broken platters,’ your lordship lias remembered me of that word. My lord, I did hear, that Mrs. Smith, did swear at Kingston assizes, it was ‘pewter platters.’

Ld. Ch. Jus. I do not know what she swore there; now I am sure she swears as it is in the indictment, &tc. &c.

After some further criticisms, Mr. Rosewell commenced his defence, and, that the ridiculous expressions charged against him and absurdly made the foundation of an indictment for high treason, were never used by Mr. Rosewell, was conclusively proved by the testimony of a great number of witnesses, who agreed in their account of the discourses, denied that he uttered the words charged, stated the language which he did use, and made it quite clear, that it was entirely owing to a misapprehension of his meaning, that the women testified as they did. For, according to these witnesses of Mr. Rosewell’s, some of whom, being in the practice of taking notes, had committed to writing some parts of his discourses, what he really did say, was in substance as follows, and was delivered by him while expounding the 20th chapter of Genesis. After reading some of the first verses of that chapter, he took occasion to observe, from the conduct of Abraham there mentioned, that a good man might fall into the same sin, again and again. One instance, which he mentioned was that of Jehoshaphat, who sinfully joined with two wicked kings, first with Ahab, and afterwards with Ahaziah. On the seventh verse, he observed that the prayers of the prophets have been very prevalent for the healing of others. He instanced the prophet who rebuked king Jeroboam, and when the king’s hand became withered, because he threatened the prophet with it, and the king intreated the prophet that it might be restored, it was healed at his intercession. Mr. Rosewell in his discourse then quoted from an annotator on the bible, ‘that a godly man’s prayer is a sovereign cure of the king’s evil,’ not meaning the scrofula; but any disease which a king might happen to have, &c. There was nothing said about ‘ flocking to the king ‘ at all.

In his second discourse, he expounded Heb. 11. v. 12 which alludes to Abraham’s having a son in his extreme old age, from whom a great multitude of descendants sprung. He took occasion to observe, that God could effect great matters by very small and improbable means. He instanced the throwing down of Jericho by the sound of rams’ horns, the destruction of the Midianites by Gideon, with a few broken pitchers, and the killing of Goliath by David with a sling.

It seems probable, these women, immediately after they heard these discourses of Mr. Rosewell, had conversed together in relation to them, and had agreed in putting their own erroneous interpretation upon them, and through the effect of imagination, had come to the belief that he had actually made use of the expressions charged, because they expressed the meaning, which, on a conference with each other, they concluded was intended by Mr. Rosewell. Mr. Rosewell’s loyalty and innocence of any treasonable intention was established in evidence by a great number of witnesses, who testified particularly to his uniform practice of praying publicly for the king. On one occasion he was overheard praying for him in secret prayer, by one of his servants. He was however found guilty of high treason, and would have been executed, if there had not been a want of technical certainty in the indictment, in describing the charge. As soon as Mr. Rosewell made the exception, it was readily entertained by Ch. Jus. Jeffries, who stood firmly by the law, and seemed disposed to sustain the exception. But, in all probability, it was thought to be bad policy to let a prisoner off, by a motion made in arrest of judgment for a defect in the indictment, which, it does not appear, could have been avoided, and Mr. Rosewell was therefore pardoned.

After the exception to the indictment for want of certainty, was made by Mr. Rosewell, the Chief Justice assigned Mr. Pollexfeu to be his counsel to argue the motion in arrest of judgment; Mr. Pollexfen then moved for a copy of the indictment, because it might be necessary to know its precise tenor. The Ch. Jus. would not grant it, but expressed his opinion of the unreasonableness of withholding it, in the following terms.

‘Why look ye, Mr. Pollexfen,—If you speak to me privately as to my own particular opinion, it is hard for me to say, that there is any express resolution of the law in the matter; but the practice has always been to deny a copy of the indictment. And, therefore, if you ask me as a judge, to have a copy of the indictment delivered to you in a case of high treason, I must answer you, show me any precedents where it was done. For, there are abundance of cases in the law, which seem hard in themselves; but the law is so, because the practice has been so, and we cannot alter the practice of the law without an act of parliament. I think it is a hard case, that a man should have counsel to defend himself for a two-penny trespass, and his witnesses examined upon oath; but, if he steal, commit murder or felony, nay, high treason, where life, estate, honour, and all are concerned, he shall neither have counsel, nor his witnesses examined upon oath; but yet you know as well as I, that the practice of the law is so; and the practice is the law.’

It is very plain from many’other cases, besides those which have been named, that it is too much to expect of the trial by jury, that it should always guaranty a fair trial to the prisoner, even if the jury are free from all responsibility for the correctness of their verdict, unless the prisoner has secured to him, the right to a copy of the indictment, that of being heard by his counsel without any restrictions whatever as to questions of law; the right to compel the attendance of his witnesses, and that of having them put on oath, all which were formerly withheld.

But so long as juries shall be protected in the free exercise of their understandings, as they now are in this country, it will be impossible for any government to practise any very gross oppression upon the citizens in general, under the forms of legal trials.

It is on this account, that the people should carefully guard this mode of trial from change or alteration. For, as it is one of the strongest safeguards of the civil rights of the people; it will be one of the first upon which lawless power will desire to lay its hands, under the pretext of improvement. But, here at least, it is hoped, the hand of innovation will be prevented from any modifications which will affect its sense of common interest, its impartiality and independence.

It is true, juries are very properly under the control of the court in many respects; and may be punished for a contempt, if they neglect or refuse to perform their duty; if they refuse to submit to the lawful direction of the court as to their behaviour during a trial; as, for example, if they should refuse to como in or to go out at the request of the court, or should persist in disturbing the course of a trial by grossly disorderly conduct, persisting in asking illegal questions after notice from the court, or any other similar absurdities or improprieties. And therefore it has been held, that, if the jury separate improperly, they may be punished at the discretion of the court, as for a contempt. 2 B. & Al. 462. So, if they should eat or drink without the direction of the court, before finding their verdict, even if it be at their own expense; but, for a stronger reason, if at the expense of one of the parties. See Vaugli. 153. In Plowd. 518, a case is mentioned of a juror, who was fined twenty shillings for having sugar candy, he. found upon him. So, they are fineable, if they are unlawfully dealt with. See 1 Dyer, 55. pl. 8. And a juror who has been challenged and taken from the pannel, is punishable for speaking with the rest after departure from the bar. 2 Ro. 85.

But; juries are left entirely free from any other motives to agree upon their verdicts, than those of reason and conscience, and a regard for truth and justice. Where there is no probability that they will agree, it would be an act of oppression to keep them together an unreasonable time. And there is no reason to do it in modern times; since it seems to be quite settled, that even in a capital case, if the jury cannot agree, they may be discharged, and the proceedings may be repeated before another jury, toties quoties, until a jury can be found who will agree in their verdict.

It ought not to be dissembled, however, that doubts have been entertained, whether in general the merit of this popular mode of trial is not greatly overrated. On this account it was intended to notice some of the exceptions, to which it seems most exposed. But, as this chapter has already overrun its assigned limits, it must suffice merely to allude to some of the more prominent ones, and to submit them without comment to the intelligence of the reader.

1. It has been thought incongruous, that though juries have no adequate knowledge of the law independent of the charge of the court, yet they may, if they please, decide directly contrary to it; and thus, while they have not discernment enough to do right, they are entrusted with a power to do wrong.

2. Where damages are certain, all juries must decide alike; when they are uncertain, no two juries would give the same verdict.

3. In cases, where questions of party politics have been brought up, it has frequently been found, that the jury has divided in opinion according to the politics of the jurors.

4. In cases where local interests, or popular prejudices or feelings, are concerned, a stranger, or one who is not of the tribe or clan, must rest satisfied with very meagre justice.

5. Juries are affected by circumstances of pomp, display, plausibility, vain glory; and are influenced by eloquence, authority and reputation, as much as by considerations of truth, and justice. It is easier to persuade them, by an appeal to their sympathy, than to convince them by argument.

6. They are usually more merciful than judges, though not always; but not so just. Yet the jury decides whether a crime has been committed or not, which would seem to require the most exact justice; while the judge frequently determines the amount of punishment, which would seem to afford an opportunity for the exercise of mercy.

Whatever may be thought of these exceptions, it is clear that the value of the trial by jury, must always depend upon the degree of virtue and intelligence prevalent among those citizens, from whom juries are selected.

Continued in CHAPTER VI: Of the Rights of Witnesses.

See the other parts of this series:
RIGHTS OF AMERICAN CITIZENS: General Rights; Division One
RIGHTS OF AMERICAN CITIZENS: General Rights; Division Two
RIGHTS OF AMERICAN CITIZENS: General Rights; The Social Compact
RIGHTS OF AMERICAN CITIZENS: The Powers delegated to the General Government in the Federal Constitution
RIGHTS OF AMERICAN CITIZENS: Powers delegated to the State Governments
RIGHTS OF AMERICAN CITIZENS: The Independence of the States
RIGHTS OF AMERICAN CITIZENS: The rights reserved to the people of the United States
RIGHTS OF AMERICAN CITIZENS: Of the right of suffrage and of elections
RIGHTS OF AMERICAN CITIZENS: The Liberty of Speech and of the Press
RIGHTS OF AMERICAN CITIZENS: The Power of Courts to punish for Contempts
RIGHTS OF AMERICAN CITIZENS: The Law of Libel in relation to Public Officers
RIGHTS OF AMERICAN CITIZENS: The mode of obtaining redress for infringement of civil or political rights

RIGHTS OF AMERICAN CITIZENS: The Law of Libel in relation to Public Officers

libel-law_1The Rights of an American Citizen: With a Commentary on State Rights, and on the Constitution and Policy of the United States by Benjamin Lynde Oliver published 1832


CHAPTER IV: Of the Law of Libel in relation to Public Officers, &c.

Any species of publication, of a more fixed and durable nature than oral communications, which are merely slanderous, tending either to bring the government, or the rulers for the time being, or public officers in general, or private individuals, into hatred, contempt, or ridicule, is a libel, and is generally actionable at the suit of the party injured, or indictable as a public offence.

It is actionable, on account of the damage which the party libeled, sustains in consequence of it; and therefore where the facts charged in the publication are true, there is generally no redress by action, unless perhaps in the case where personal defects or deformities are maliciously made sport of, where it is presumed the humanity of the law would not permit the truth to be a justification.

A libel is indictable, because of its tendency to lead to the breach of the peace. At common law, therefore, the truth of the libel was never considered as a justification, because the tendency to a breach of the peace would be the same, whether the publication were true or false. It is on this account^ that a libel on the memory of a person deceased, is held to be a libel, because it has a tendency to excite the feelings of his children or kindred, and leads to acts of violence. If, however, a publication should be written as a matter of history and with a proper regard to historical or biographical truth, and without any malicious intention of defaming the dead, it would be justified, notwithstanding the facts which it contained, might impeach the character of the deceased.

In the case of the Commonwealth v. Clap, Parsons, Ch. Jus., assigns another reason, why the truth of a libel ought not to be received as a justification on an indictment. If the law permitted the truth of the libel to be given in evidence on an indictment, the effect would be a greater injury to the party libeled. For, he is not a party to the prosecution, nor is he put on his defence, and the evidence at the trial might more cruelly defame his character than the original libel. See 4 Mass. R. 169. Because, he could have no opportunity to call witnesses to prove the falsehood of it. In general, a libel in a letter sent to the party himself, is not actionable; though there are contrary decisions. See 1 Term R. 110. 2 Esp. R. 625. 2 Starkie, 245 : but it may be punished by indictment, on account of its tendency to produce a breach of the peace. Ibid.

bloggers-beware-libel-lawsuitsSubject to these restrictions, it is both actionable and indictable as a libel, to charge a person with any act which is punishable as a crime; or, with criminal or vicious practices or propensities; or, with being a man of bad character or principles. So, it is libelous to reflect on him for any personal defect or deformity; to apply to him any contumelious or abusive epithet, as coward, villain, poltroon, &tc.; to miscall him in his business, if done maliciously, for the purpose of degrading him, as to call a shoemaker, ‘ cobbler,’ &sc.; to charge him with having, or having had, any disgraceful disease. So, in general, it is libelous to charge a man with being deranged in mind.

To publish of a member of congress, who had left his seat in congress and accepted an office under the state government, ‘ He is a fawning sycophant, a misrepresentative in congress, and a grovelling office seeker; he has abandoned his post in congress, in pursuit of an office—was held libelous;’ and without doubt either of the propositions contained in the above sentence, is sufficient of itself to constitute a libel. See 7 Johns. 264.

In the case of Stow v. Converse, it was held, that—

To ascribe to a person the expression of any blasphemous sentiment, or one ‘ irreverent toward the Creator and Governor of the world, and so analogous to the modes of thinking habitual to unbelievers and profligate men, (as that contained in the libel,) and which would disgrace any person who is not a professed infidel, must be considered libellous, if false; because, if believed, it can scarcely fail to deprive him of the esteem of mankind, exclude him from intercourse with men of piety and virtue, and render him odious and detestable.’ See 3 Con. R. 342.

To charge a senator with concealing from the senate his knowledge, that a bill contained a particular provision, when he knew that they were ignorant of that fact, by which they were led to pass the bill under false impressions, and under the concealment of what, it was necessary or proper that they should have been acquainted with, was held actionable as libelous. See 10 Johns. 259.

It is held not to be necessary, that the libel, in plain and express terms, should charge criminality; but, if it necessarily implicate the conduct of the party concerned or referred to, it is libelous. ‘The contrary doctrine,’ in the words of Spencer, Chief Justice, ‘in Van Ness v. Hamilton, added to the acknowledged licentiousness of the press, would form a rampart from behind which the blackest scurrility, and the most odious recriminations might be hurled on private character with impunity, and would indeed render the press both a public and private curse, instead of a blessing.’ See 19 Johns. 372.

It is not necessary to constitute a libel, that it should be either written or printed. To set up any disgraceful emblem or symbol, having a personal application is libelous, and is actionable as well as punishable by indictment. Thus to hang a person in effigy; to paint or engrave a caricature of him; or, to exhibit it, or to expose it for sale, is libelous, and actionable and indictable as such, both in the painter and engraver, as well as in the booksellers, whose shop windows are disgraced with such exhibitions. From the instances last mentioned, it is apparent, that it is not the first contriver, inventor or author of the libelous publication, alone, who is punishable for a libel, by action or criminal prosecution; but every one, who, in any respect takes an active part in giving it publicity, is liable. And therefore, where one person posted another in a newspaper, by a letter addressed to him, and subscribed with the writer’s name, charging the person addressed with being a man destitute of honor and courage, it was held that the editor of the newspaper was answerable for the libel. The reason is, that the author may be a vagrant; he may be out of the reach of process, or he may elude it; or he may be irresponsible; and, if the editor were not answerable, the person libeled would be without redress. So, it was held to be no legal excuse for a printer, in a civil action for a libel, that the libel was inserted and paid for as an advertisement in his paper, by one who subscribed his name to it. A printer, who, for so small a consideration, can consent to prostitute his paper for the gratification of private malignity, deserves no better. See 3 Yeates. 518.

In cases of this kind, it is recommended to the person injured by a scandalous libel, to make no inquiry for the author of the libel, but to commence his prosecution against the publisher of it. For, he who publishes a libel against his neighbor, without having previously ascertained the truth of it, though he may not be the inventor, ought to be held answerable for all damages arising from the calumny, which he has assisted to circulate. To prosecute the publisher therefore, notwithstanding he may be willing to disclose the name of the author, will be the most effectual way to put a stop to such libelous publications. Because, however large the damages may be, which he may be compelled to pay, he will have no legal right to call on the author for payment or contribution. On the other hand, where a publication will be justified if true, and the public good will be promoted by the publication, it is recommended to the publisher to assume the responsibility of authorship himself; in which case, if he is prosecuted as a libeler, he may do the public a service by proving the truth of the charge; for which purpose, he will have a legal right to resort to the testimony of the person, by whom the facts, constituting the charge complained of as a libel, were first communicated.

libel-law_2In order that an action may be maintained on a libel, it must have a particular personal application to the plaintiff. If it is uncertain who is intended by it, no action can be maintained. But, it is not necessary, that a person should be named expressly; the rule adopted by the court in this respect, is that of common sense: the court and jury will not affect to be blind, where every body else can see who is meant. Where a libel is of a general description, no action can be maintained upon it; though, in many cases, the libeler may be punished for it by indictment. See 12 Johns. 478.

No member of a legislative body will be liable to a prosecution, either civil or criminal, for any thing said or done in the regular course of any legislative proceedings. The freedom . of debate, observation and discussion, in relation to all public measures, and the conduct of men in office, necessary to wise legislation, seems absolutely to require a total exemption from all such liability. This is the law of the English parliament, and is incorporated in the federal constitution, and, it is believed, is the law of all the states. See Starkie on Slander, 200. It has been held, however, that, if a member of a legislative body should publish his speech, it will be subject to the common rules as to libels, and, if any part of the published speech is libelous, he will be liable to prosecution for it. See 1 Esp. R. 226.

In Massachusetts, it is held, that for slanderous words uttered in the house of representatives, but not in the course of debate, an action for slander may be maintained. In the case of Coffin v. Coffin, Parsons, Ch. Jus., in the course of his opinion in favor of the plaintiff, observed,—

‘To consider every malicious slander, uttered by a citizen who is a representative, as within his privilege, because it was uttered within the walls of the representatives’ chamber, but not uttered in executing his official duty, would be to extend the privilege further than was intended by the people, or than is consistent with sound policy; and would render the representatives’ chamber a sanctuary for calumny; an effect which never has been, and I confidently trust, never will be endured by any house of representatives of Massachusetts.’ 4 Mass. R. 31.

In general, any one who republishes a libel, is answerable in the same manner as the original author, or first publisher. The rule proposed by the district court of Philadelphia is, to leave the motives of the republisher to the jury; and if they should infer that it was made without malice, let him be excused, if he gave the name of his author or authority at the time, so that the party injured may seek redress. But, if they should infer malice, let the original publication go in mitigation of damages. See 2 Bro. Penn. R. 79. But perhaps public policy, as well as justice to the party libeled, would rather require that every one, who contributes to the circulation of a libel, whether it arises from malice, or from heedlessness, which frequently does more harm than malice itself, should be punishable for it on a civil or criminal prosecution. For, in one case why should that dull malice, which, incapable of inventing libelous matter itself, basely adopts it at second hand, escape more than the original propagator? On the other, a republication of a slander in a different place, may do ten times as much injury as the original publication. Thus, it is possible that a libel on a gentleman in Boston, published in Georgia, or in any other distant state, may do him no harm; but, if republished in Boston, may ruin him irretrievably; if he is to look for damages in Georgia, he can recover no more than such as he sustained by the publication in Georgia; if then, he can recover nothing for the republication, he must in effect go without any redress at all.

It is held, that the conductors of a press are entitled to no other indulgence, than any body else; and it is no invasion of the liberty of the press, that they should be held responsible for the truth of what they publish. See 7 Cowen, 628.

The case of Southwick v. Stevens, furnishes a salutary warning to those editors of newspapers, who are in the habit of indulging a propensity to sarcasm, misrepresentation and virulent controversy. The defendant in that case, had published a piece in his paper, representing the plaintiff as attacked with insanity, &c. The judge, in his charge to the jury, remarked in substance, that the publication held up the plaintiff in a ridiculous light, and was therefore libelous; that however, it was merely ironical, and in answer to a piece published by the plaintiff, in which the plaintiff had assumed a most singular style; that though libelous, it was written in the course of a newspaper warfare between the parties, and there was strong provocation to induce the ironical matter complained of, and that, in his opinion, the jury ought to find very trifling or nominal damages for the plaintiff. The jury, notwithstanding this charge, found a verdict for $640. On a motion for a new trial on the ground of excessive damages, it was refused of course, because, in cases of personal wrongs, a new trial is never granted for this cause, unless the damages are absolutely enormous. See 10 Johns. R. 259, 449.

It seems no person will be liable to an action for slander or for a libel, for any thing said or done by him in the course of a legal proceeding; as a judge, juror, witness, &c.

And therefore where charges were brought against a commanding officer, before a court-martial, and he was acquitted, and in the opinion of the court delivered on that occasion, the complainant was censured ‘for endeavoring falsely to calumniate the character of his commanding officer,’ it was held not actionable, being part of the judgment of acquittal. 2 N. R. 341. So, no action for a libel, will lie on a malicious prosecution; however, the party injured in this case, has another remedy by a special action on the case for a conspiracy, or for a malicious prosecution, according to circumstances.

In England, where A. brought a writ of forgery against a peer, and the peer was found not guilty, it was held that the peer could not have a scandalum magnatum. 1 Vin. Abr. 390; cites Hob. R. case, 350.

So, where the defendant told a justice of the peace, that he intended to charge the defendant with felony for stealing, and requested a warrant against the plaintiff; the court held that no action could be maintained. Ibid.

It is a general rule, that where the publication is made in support or furtherance of the interests of society, and not wantonly and insidiously for the gratification of private malice, the author is privileged. See Starkie on Slander, 262.

And therefore a petition for a redress of grievances, made to the proper authorities fairly and decently, can never be libelous, however offensive it may be to individuals. Accordingly, it is held, that an application for the removal of a public officer, made to the proper authority having the power of removal, is not a libel. Malice is never inferred in any such case from the mere act of publication. See 4 Serg. and Rawle, 420. This subject was thoroughly discussed in the case of Thorn vs. Blanchard.

In this case, it appeared, that twenty-four of the inhabitants of a county, had presented before the council of appointment of the state of New York, a petition for the removal of the plaintiff, who was a district attorney, alleging in substance that he was under the influence of improper motives, &c., and had been guilty of improper management in his official capacity. It was proved that this petition was read before the council, and that immediately afterwards, the plaintiff was removed from his office of District Attorney. On the trial before the supreme court of New York, the charges contained in the petition not being proved, it was held, that the several matters were sufficient for the plaintiff to maintain his action for a libel. But, the cause being carried up on a writ of error to the court of appeals, the judgment was reversed. Clinton, Senator, in the course of his opinion, delivered in that court, speaks of the judgment reversed, as a hasty decision, ‘ which violates the most sacred and unquestionable rights of free citizens; rights essential to the very existence of a free government; rights necessarily connected with the relations of constituent and representative; the right of petitioning for a redress of grievances, and the right of remonstrating to the competent authority against the abuse of official functions, &c. &c.

In any such case, he considers it incumbent on the prosecutor, to prove express malice; to demonstrate that an evil intention existed; to show in the words of Hawkins, that the petition was entirely false, malicious and groundless, and instituted, not with a design to go through with it, but only to expose the prosecutor’s character, under the show of a legal proceeding.—The presumption in any such case ought to be against malice.—The power of removal is not intended to punish the man, but to protect the public against official misconduct.— Though such council have no power to try; yet they are so far a proper forum, to receive a complaint for the removal of such grievances. He concludes with the remark, ‘that whether the grievances were true or false, innocent or malicious, the powerful and commanding dictates of public policy, must merge and extinguish all individual claims, and all personal considerations. See 5 Johns. R. 508. Yet, it would seem, that if the charges in any such case are wholly without foundation, and express malice can be proved, the pretense of public policy will not protect a libeler from prosecution. In the case of Gray v. Pentland, Tilghman, Ch. Jus. remarks, ‘in order to protect both the public and the officer, an accusation preferred to the governor, or other persons having the power of removal, is so far of the nature of a judicial proceeding, that the accuser is not bound to prove its truth. If the jury are satisfied that it did not originate in malice and without probable cause, the defendant in the action will be excused. Yeates, Jus., in the same case, remarks, that ‘wherever, under the insidious mask of consulting the public welfare, a citizen renders the investigation of the conduct of a public officer, the mere vehicle of private malevolence, and a jury on the trial shall be fully satisfied, that the publication was wanton and malicious, and without probable cause, he has no pretensions to escape unpunished. 2 Serg. and Rawle, 29. This is in accordance with the case cited in 1 Nott. and Mc. Cord, 426, where it was held, that false and malicious charges, made to a colonel of a regiment against a major in the militia, and praying for a court of inquiry, may furnish ground for a libel before a civil tribunal. .

With regard to candidates for public officers, the law contemplates a certain freedom of remark, in discussing their characters and qualifications, which under other circumstances would unquestionably be libelous. This freedom however has its limits, and should always be accompanied with fair intentions, i. e., without malice towards the candidate, and with a view to the public good. To presume both in such cases, is contrary to the general rule in relation to libels, that the falsehood of the libel, will lead to the inference of malice, unless circumstances are proved, to show that there was no malice. Public policy however seems to require, that this indulgence should be shown to the defendant in such case, in order that those persons, who are public spirited enough to oppose the election of unsuitable candidates, may not be deterred by the apprehension of being prosecuted for a libel, from taking the steps necessary to prevent their election, by exposing their characters, or unfounded pretensions.

The general doctrine on this subject has been laid down thus: ‘Where one becomes a candidate for public lienors, he makes profert of himself for public investigation. All his pretensions become proper subjects of inquiry and discussion. He makes himself a species of public property, into the qualities of which every one has a right to inquire, and of the fitness of which every one has a right to judge and give his opinion, &c. &c. See 1 Nott and Mc Cord, 348.

The case of Lewis v. Few ought not to pass unnoticed here, because the doctrine contained in it, is of very frequent application.

In that case, there had been an assembly of the people, for the purpose of selecting a candidate for the office of governor of the state of New York. At that meeting an address to the voters, containing libelous charges against the plaintiff, was read and unanimously accepted, and ordered for publication. The defendant was chairman of the meeting, and signed the address as such; the action for the libel was brought against him alone. Some remarks of the plaintiffs counsel are particularly deserving of attention.

‘It is the undoubted right of the people to assemble together, to discuss public measures, and the qualifications of candidates for public office. They may freely speak and publish the truth and the whole truth; but this cannot authorize them to publish falsehoods, and atrocious libels concerning public candidates. Political meetings are not to be sanctuaries for libelers and slanderers, from whence they may issue their calumnies with impunity.—

—The people, it is true, in their political capacity constitute the sovereign and supreme power of the state, &c. Who are the people? The great body of electors. But any assemblage of citizens, whether electors or not, for the purpose of promoting the election of a particular candidate, and of influencing the electors to vote for their favorite, is not the people, or sovereign, in this constitutional sense. It would be a most dangerous doctrine and productive of the greatest licentiousness, if such meetings were to be considered as the people, and possessing the attributes and immunities of sovereignty, &c. &c. —The situation of public magistrates, and public candidates would be deplorable, indeed, if the law afforded them no protection against the slanders uttered by such meetings. Individuals may be restrained by shame, fear, or personal considerations ; but an assembly will not be influenced by such considerations. A multitude never blush,’ &c.

It was held by the court, that the circumstances of the case were no justification of the libel. See 5 Johnson’s R. 22.

In the case of The Commonwealth v. Clap, Parsons, Ch. Jus., lays down, that publications of the truth, concerning the character of a public elective officer, and relating to his qualifications for such office, made with intent to inform the people, are not a libel. And every one holding such office, may be considered as a candidate for re-election, if he does not disclaim it.”

On the other hand, he considers the publication of falsehood and calumny, against public officers and candidates, as a very high offence. See 4 Mass. R. 169. See also 3 Pick. 304.

In Tillotson v. Cheetham, it was held, that the public character of the plaintiff as an officer of government, is a consideration for giving exemplary damages. 3 Johns. 57.

But, as a publication, though false, will not always be a libel; so, on the other hand, the truth of a publication will not always be a justification of it.

The true legal criterion seems to be, what the jury, under the direction of the court, shall believe to be the intent with which the publication was made. For, it seems, even erroneous statements, made honestly and on occasions, where a person is called upon by duty, or, where he has a legal right to express his opinion, or, where considerations of public policy require there should be no such restraint, will be excused, though injurious to the character of another. The following distinctions in relation to this subject, it is believed, are well founded.

1. Where the publication is false, the jury are generally to presume, it to be malicious, unless the defendant can show it to come within one of the above classes of privileged communications, in which case, to render it libelous, express malice must be proved, either by the declarations of the libeler, or by showing, that he knew he was publishing a falsehood.

2. Where the publication, though scandalous, is true, it is generally held that no action can be maintained for it; though perhaps there may be cases, as, if one should libel another on account of his personal deformity, with which the public have nothing to do, which is equally barbarous and unnecessary. But, for a libelous publication, though founded on fact, a man is punishable by indictment, unless it comes within some of the above classes of privileged communications.

On an indictment for a libel, if the publication is of a scandalous nature, the question whether it is true or false, according to the common law, ought never to be raised. For, if it is a privileged communication, it will be excused though false; and, if it is not so privileged, it cannot be justified, though true. Comments on candidates for public offices, and on the conduct and character of public officers, must be considered as coming within the protection of privileged communications, and will not be libelous without proof of express malice, which will sufficiently appear, if the charges are groundless and without probable cause.

3. Where a publication is false, and does not come within any general class of privileged communications, though the jury ought generally to presume malice; yet, if the defendant can show, from circumstances, that there was no malicious intention, he will be excused on an indictment, and it will go in mitigation of damages in a civil action. In 1 Hawks. 472, it was held, that where a libel is published, malice will generally be inferred from that act, but it may be explained away by evidence, to show, that in fact there was no malicious intention ; and the circumstance should be left to the jury.

4. A publication, relative to a candidate for public office, purporting to relate facts, of a libelous nature, and which the publisher must have known to be false, or which he had no reason whatever to believe to be true, will be presumed to be malicious in either a civil or a criminal prosecution. In 1 Nott and Mc. Cord, 268, it was held that facts and circumstances showing a ground of suspicion, though not amounting to actual proof of guilt, may be given in evidence in mitigation of damages.

5. It is laid down, and seems to be a safe proposition, that a publication simply denying charges imputed to the author, and confined exclusively to that object, is not a libel, whatever its contents may be. 4 Mc Cord, 322.

In 1 Nott and Mc Cord, 348, it is held in substance, that, ‘to be actionable the libel must contain something, calculated to reflect shame or disgrace, or hold up the person libeled, as an object of hatred, ridicule or contempt. That if the words are not actionable per se, their being false and malicious does not always necessarily render them so, even if special damage could be shown, because, if any such damage should arise from words absolutely innocent in their nature, though false (as to say of an attorney, that he was not witty) it would be damnum absque injuria; i. e. such a damage as the law does not notice as a wrong. And therefore it was held in the case cited> that where a private letter to a political friend, merely contained an opinion that a certain candidate for representative to congress, was so frequently affected in his mind, that he ought not to be supported for that situation, it was not actionable as a libel. The discerning reader will perceive in any such case, the necessity of attending to its peculiar circumstances, in order to determine, whether a communication is actionable or punishable as a libel, or not. In regard to all communications which are privileged, it will be most safe to give no more publicity to them, than is necessary to obtain those objects, on account of which alone, the law bestows the privilege. Any further publication will lead to the inference that there must have been some other motive for it, which if not shown to be innocent, the law will presume to have been malicious. It would be contrary to public policy, however, to punish any person as a libeler, merely for expressing in any of the public journals, a sincere belief that a certain candidate for public office, ought not to be chosen on account of certain facts, transactions, &c. 8ic. which the supposed libeler had probable cause to believe to be true. It has been held, however, that a publication of rumors, is not justified by the fact, that such rumors exist. See 1 Wendell, 456. A man’s character ought not to be at the mercy of a mere scandalous rumor, which it is frequently impossible to trace to any responsible source. . Yet in any such case, it seems, that the existence of such rumors will go in mitigation of damages.

In the case of the People v. Croswell, Kent, Jus., concludes his opinion with the following remarks. ‘The founders of our governments were too wise and too just, ever to have intended by the freedom of the press, a right to circulate falsehood as well as truth, or that the press should be the lawful vehicle of malicious defamation, or an engine for evil and designing men, to cherish for mischievous purposes, sedition, irreligion and 1mpurity. Such an abuse of the press would be incompatible with the existence and good order of civil society. The true rule of law is, that the intent and tendency of the publication, is in every instance to be the substantial inquiry on the trial, and that the truth is admissible in evidence to explain that intent, and not in every instance to justify it. I adopt, in this case, as perfectly correct, the comprehensive and accurate definition of one of the counsel at the bar, (General Hamilton,) that the liberty of the press consists in the right to publish with impunity, truth with good motives, and for justifiable ends, whether it respects government, magistracy, or individuals.’ See 3 Johns. Cases, 394. This doctrine is expressly incorporated into the statute law of several of the states, particularly New York, Pennsylvania, and Massachusetts.

With regard to other publications, it may be remarked, that it is no infraction of law to publish temperate investigations of the nature and forms of government. Commonwealth v. Dennie, 4 Yeates, 267. Further than this the law does not seem to be judicially settled in this country. In the case of the Commonwealth v. Dennie, just cited, that distinguished writer was indicted for publishing the paragraph contained in the note below, and which, whether the result shall show his opinion to be well or ill founded, must be acknowledged to be equally virulent and unbecoming. Yeates, Jus., in the course of his charge to the jury, remarked, in substance, There is a marked distinction between temperate investigations of the nature and forms of government, and those which are plainly accompanied with a criminal intent, deliberately designed to unloosen the social band of union, totally to unhinge the minds of its citizens, and to produce popular discontent with the exercise of power by the known constituted authorities. These latter writings are subversive of all government and good order. ‘The liberty of the press consists in publishing the truth, from good motives, and for justifiable ends, though it reflects on government, or on magistrates.’ (Gen. Hamilton in Croswells Trial.) It disseminates political knowledge, and, by adding to the common stock of freedom, gives a just confidence to every individual. But the malicious publications which 1 have reprobated, infect insidiously the public mind with a subtle poison, and produce the most mischievous and alarming consequences, by their tendency to anarchy, sedition and civil war. We cannot, consistently with our official duty, pronounce such conduct nonpunishable. The jury brought in a verdict of not guilty. See 4 Yeates, 267.*

* The paragraph for which Mr. Dennie was indicted, was as follows:

‘A democracy is scarcely tolerable at any period of national history. Its omens are always sinister, and its powers are unpropitious. With all the lights of experience blazing before our eyes, it is impossible not to discover the futility of this form of government. It was weak and wicked at Athens, it was bad in Sparta, and worse in Rome. It has been tried in France, and terminated In despotism. It was tried in England, and rejected with the utmost loathing and abhorrence. It is on trial here, and its issue will be civil war, desolation, and anarchy. No wise man but discerns its imperfections, no good man but shudders at its miseries, no honest man but proclaims its fraud, and no brave man but draws his sword against its force. The institution of a scheme of polity so radically contemptible and vicious, is a memorable example of what the villainy of some men may devise, the folly of others receive, and both establish in despite of reason, reflection, and sensation.’

There is nothing that can be said to excuse or palliate the public avowal and dissemination in this country, of such sentiments as those contained in the concluding part of the above paragraph, in italics. To publish them in periodical publications, seems almost as unjustifiable, as to attempt to overthrow a government with no better pretense, than that it cannot last. If the experiment is making, let it be made fairly.

Much of this writer’s paragraph is sophistical. Our form of government is not the same with the democracy of Athens, or that of Sparta, or that of Rome, and has never been tried either in France or England; and all arguments drawn from experience must fail, when the experiment has not yet been made.

It has been found to have imperfections, it is true; some of which have been remedied by peaceable and deliberate amendments. In other countries a political reform of any kind, has seldom if ever been obtained, without a.revolution, and not always, with one. Our frame of government has within itself a power to reform, without any danger to apprehend a civil war in consequence of it; which there is no reason to fear will ever take place, unless the constitution is either overstepped or violated.

In England it is held, that any person may discuss the proceedings of parliament, even after they have become final, and express doubts as to their wisdom and policy. See Holt on Libels, 135. The law is the same here; this freedom of speech and of the press, without doubt is the peculiar object of the protection of the provision, contained in the first amendment to the federal constitution.

So, it is lawful, with decency and candor to discuss the propriety of the verdict of a jury, or the decision of a judge. But, if the publication contains no reasoning or discussion, but only declamation and invective, and is written not with a view to elucidate the truth, but to injure the characters of individuals, and to bring into hatred and contempt the administration of justice in this country, they ought to be punished. See 1 Cowp. 359.

And generally, where any public grievance is exposed, whether by way of petition, remonstrance, &c., it seems, that any language, however strong, which is made use of to express the grievance, will be justifiable.

It is for the interests of literature, that a candid review of any literary work should not be esteemed libelous. Accordingly, in the case of Sir John Carr v. Hood, it was held to be no libel to expose a false literary taste, though by satire, burlesque, and ridicule. In that case it was held, that even a caricature of the author, as an author, and not as an individual, was not libelous; and the general doctrine was laid down, that no publication is a libel, which has for its object not to injure the reputation of any individual, but to correct misrepresentations of fact, to refute sophistical reasoning, to expose a vicious taste, or to censure what is hostile to morality. 1 Camp. 350, 354.

It may not be amiss to bear in mind, that a libel is a forfeiture of a bond for good behavior. 3 Yeates, 93.

Continued in CHAPTER V; Of the Rights of Juries.

See the other parts of this series:
RIGHTS OF AMERICAN CITIZENS: General Rights; Division One
RIGHTS OF AMERICAN CITIZENS: General Rights; Division Two
RIGHTS OF AMERICAN CITIZENS: General Rights; The Social Compact
RIGHTS OF AMERICAN CITIZENS: The Powers delegated to the General Government in the Federal Constitution
RIGHTS OF AMERICAN CITIZENS: Powers delegated to the State Governments
RIGHTS OF AMERICAN CITIZENS: The Independence of the States
RIGHTS OF AMERICAN CITIZENS: The rights reserved to the people of the United States
RIGHTS OF AMERICAN CITIZENS: Of the right of suffrage and of elections
RIGHTS OF AMERICAN CITIZENS: The Liberty of Speech and of the Press
RIGHTS OF AMERICAN CITIZENS: The Power of Courts to punish for Contempts
RIGHTS OF AMERICAN CITIZENS: The Law of Libel in relation to Public Officers
RIGHTS OF AMERICAN CITIZENS: The mode of obtaining redress for infringement of civil or political rights

RIGHTS OF AMERICAN CITIZENS: The Power of Courts to punish for Contempts

Bill of RightsThe Rights of an American Citizen: With a Commentary on State Rights, and on the Constitution and Policy of the United States by Benjamin Lynde Oliver published 1832


CHAPTER III; Of the Power of Courts to punish for Contempts.

A Contempt of court is some gross act of indignity or affront, offered to the court while in session, and which tends to hinder or disturb the administration of justice, or to bring it into contempt with the people. It may consist either in disobedience to some lawful command of the court, by wholly refusing to comply with it; or, by doing the act commanded to be done, in an improper manner; or, by acting in a manner contrary to some lawful prohibition of the court.

It may also consist in opposing or disturbing the execution of lawful process issued by the court. It is also a contempt of court to abuse its process, by willfully doing wrong in the execution of it, as well as to do any act under the pretense of having authority from the court, but, in fact having none. It is a contempt of court also, in any person duly summoned as a witness and having had his fees tendered, to refuse to appear. So, it is a contempt of court, to practice upon a witness, who has been summoned to appear, whether by threats, bribery, &c. It has been held also, that after a dispute has been left to arbitrators under a rule of court, it will be a contempt of court, if one of the parties, without the consent of the other, should take away the papers from the arbitrators in order to stop proceedings. So, if a sheriff should grant a replevin of property, having express notice that it is irrepleviable. See 1 Wils. 75.

A gross attempt to impose upon the court, is also considered as a contempt; for example, where a man aged sixty-three years, pleads infancy. See 2 Buls. 67.

Most of the instances of contempts specified above, to which many others might be added, are contempts of court merely by construction of law. And it frequently happens that the act complained of as a contempt, is susceptible of such explanations, as to show that no indignity was intended to the court in reality. Where the act is not committed directly in the presence of the court, therefore, it is usual for the court to direct interrogatories to be administered to the party charged; so that he may explain away the contempt if he can, and clear himself; but if the act cannot be thus entirely explained away, he may avail himself of the opportunity, to make such concessions and apologies, as the nature of the case may admit or the court may require.

PrecedentIt must not be understood, however, that the court have any power or authority to compel any person, upon whom an act of contempt has been proved, to answer any inquiries in relation to the subject. Reason and the constitution equally prohibit any compulsion to a person arrested, to force him to answer any questions which may tend to incriminate himself in any case whatever. But, when the act constituting the contempt has been proved, the contempt itself is also so far proved, that, if the person charged with the contempt, either will not or cannot give a satisfactory explanation, and thus show that no indignity was in fact intended, he will be held guilty of the contempt. The administering of interrogatories to him therefore is an act of indulgence; because he is considered already as guilty of the contempt before the interrogatories are administered, and will be punished accordingly, unless he either clears himself of it, or makes a suitable apology.

Where the alleged contempt consists in some act done in the immediate presence ofthe court, the court if they see fit, may direct the offender to be imprisoned at once. Such acts are usually acts of gross indignity, or disorderly conduct, and, for the most part, seem to admit of no^excuse or palliation but that of a total ignorance of the rules of decency and good manners. Such contempts may consist in a direct personal affront offered to the judges either by word or deed; and of course hardly admit of apology or explanation. The court may therefore proceed at once to punish him. Bl. R. 640. Bur. 2129. Another contempt, though of a much less odious kind, is that of shouting, waving the hat, &c. at the termination of a trial, the result of which is particularly agreeable or disagreeable to the bystanders. This however is a contempt of court, for which a person may be committed or fined, unless the court sees fit to accept his apology. See 6 T. R. 630.

Somewhat similar to this class of contempts, is the speaking of contemptuous or reproachful words, of the court to one of its officers while serving process.

At common law, the mere establishment of a court, without any express grant of a power to punish contempts, gives this power by necessary implication j so that there is no tribunal established, however inferior in its nature, but that may justly exercise this power, at least so far as may be necessary to preserve itself from annoyance or disturbance, while in the discharge of its official duties. Accordingly it seems, that every magistrate, while holding a court, has a right to order into custody any person who should disturb its proceedings, or should insult him personally, while in the discharge of his judicial duties, or should commit any such violation of decorum, as would tend to bring him or his court into contempt among the suitors. But, it would seem, that the inferior tribunals of justice, have no authority to commit for contempts, not offered in their presence, but must proceed by indictment. See 2 Bays R. 1. In the case last cited, it was held, that a justice of the peace, while holding a court, may commit by summary conviction any person, who may offer him any insult by word or deed in his presence. It would seem, by the same case, that he is not answerable in an action, for what he does by virtue of his judicial power. But, if he should act corruptly or oppressively in his official capacity, he may be indicted for it, and punished by fine and imprisonment.

It seems a writ of error will not lie on a conviction for a fine on a contempt. See 3 Mod. 28. 1 Sal. 144, 263. Ld. Raym. 454, 1115.

The remedy for a person improperly detained in custody, in any such case, would be to apply for a habeas corpus. But the court would probably hesitate to release the prisoner, unless a clear case was made out in his favor, where he had been regularly committed for a contempt. In the case Yates v. Lansing, before cited, Piatt, senator, remarks, that, ‘ The habeas corpus act is justly prized as one of the bulwarks of freedom, and can be endangered only by its misapplication and abuse. Let us beware, that, in our zeal for securing our personal liberty, we do not destroy the virtuous independence and rightful authority of our courts of justice, and thereby subvert the foundation of social order. So long as our courts are pure, enlightened and independent, we shall enjoy the greatest of earthly blessings, a government of laws; but, whenever these tribunals shall cease to deserve that character, the standard of justice and civil liberty, must give place to the scepter of a tyrant.’

If a prisoner, after an examination on a habeas corpus, should be remanded into custody, it seems to have been the opinion of some, that a writ of error might be brought, and if the judgment should be reversed, he might be discharged by the court having authority to correct the erroneous judgment. But the better opinion seems to. be, that no writ of error will lie upon any proceedings on a habeas corpus. For, if a prisoner applies for a habeas corpus, and it is refused; or, if it is granted, and, on examination the prisoner is denied bail or enlargement, in which case he is remanded of course, there is no such final judgment, as will maintain a writ of error; for, any other court or judge having jurisdiction, may, at discretion, grant another habeas corpus and bail or discharge him upon it; or, if he applies for a habeas corpus in vacation, to one of the judges, and it is refused, he may renew his application in term time, to the whole court. On the other hand, if a prisoner is discharged on a habeas corpus, no writ of error will lie, though if such discharge is erroneous in fact, any court of competent jurisdiction may recommit him. See 6 Johns. 407, 427; cites State Trials, p. 90.

With regard to contempts of court, offered to the superior tribunals of justice, but not in their immediate presence, the law does not seem quite settled. It has been held, that it is a contempt of court either to scandalize the court itself, or any of the parties engaged in a cause, so as to prejudice others against them, before the decision of the case. See 2 Atk. 471. 2 Ves. 321, 520. And in England, where disrespectful words are spoken of the court, there will not be a rule upon the party to show cause why an attachment should not be granted against him, but an attachment will be awarded in the first instance. See Sayer’s R. 114, 47.

Where a person attached for a contempt, declines answering proper interrogatories, or gives an unsatisfactory answer, he will be considered guilty of the contempt; but the mere refusal to answer improper interrogatories, is no contempt of itself. Bl. R. 637. Upon any reasonable objection to answer an interrogatory as it is framed, the court will direct it to be modified, or will accept of a qualified answer to it. See 1 Strange’s R. 444.

Where a writ of habeas corpus issues, a proper return must be made to it, otherwise an attachment will immediately issue against the person to whom it is directed, without issuing an alias. The liberty of the people is concerned here. See 5 T. R. 89.

In England, it seems, a peer must obey the lawful process of the court of king’s bench, or otherwise, the court may award an attachment against him for the contempt. Sayer’s Rep. 50. For the same reason, Lord Preston was committed for refusing to be sworn before the grand jury. See 2 Sal. 278.

In ancient times, in that kingdom, contempts were sometimes punished with great severity; but the contempts so punished belong to a barbarous age, and there is no reason to suppose could have been restrained by milder punishments. For, where the voice of reason, and decency and good manners are disregarded, the moral sense being wanting, an appeal must of necessity be made to the animal part of human nature by corporal punishments, to keep the turbulent and disorderly within proper bounds. Where a party in a cause struck one of the jurors, who gave a verdict against him in Westminster Hall, it was awarded by the king’s council, that he should forfeit his lands and goods, and that his right hand should be struck off. So, where one justled another over, maliciously in the presence of the court, and spurned him with his feet, it was held that he should lose his right hand, though he did not strike the other either with any weapon or with his hand. See 12 Co. 71.

In those states where there is no special provision by law for the punishment of contempts, the courts can only give judgment according to the common law, and punish the offender, by fine and imprisonment.

With regard to imprisonment, it would seem, that the courts have no authority to imprison for contempts for any longer time than during the term of the court, unless in the case of constructive contempts, by refusing to obey an order of a court of chancery, where the judgment would be, that the party be imprisoned until lie obey the order. In the former case, the judgment will be, that the party be imprisoned during the pleasure of the court; but if the court should adjourn without day, without making any order in relation to the prisoner, it would seem reasonable that he should immediately be discharged on a habeas corpus. For, otherwise he might be subjected to perpetual imprisonment. See Lev. 165.

Where any contempt or disturbance is committed in any court of record, the presiding justice may either fine, or commit the person for the contempt. See 8 Co. 38, 6. Owen, 117. Cro. Eliz. 581. And in default of another remedy to recover the fine, it may be recovered by an action of debt. Mo. 470.

Where an important criminal trial is going on, before a court having final jurisdiction, it does not seem quite settled, in this country, how far the court have any lawful authority to prohibit the publication of the proceedings from day to day before the termination of the trial. On such occasions, the curiosity of the public is on the stretch, and unless there is some well-founded objection in public expediency, or in the prevention of injustice to individuals, it ought to be indulged. If the court were able, by prohibiting the publication of the public proceedings, to prevent erroneous impressions from being made on the minds of the people, there would be a plausible ground for the exercise of such a power; but this is wholly impracticable, because the people will inquire of each other, and, there can be no doubt, will receive much less accurate accounts and statements than the newspapers would exhibit, if they were not prohibited to publish the proceedings. If the design of such prohibition were to prevent the jury trying the case, from being influenced by such publications, it would be done much more effectually by directing the officer in attendance upon the jury, to prevent them from seeing any of the daily papers, until their verdict should be given. This would be a very proper measure, and would wholly prevent any possible effect upon their minds, from publications or notices of any kind in relation to the trial, The court, it is obvious, would have a perfect right to adopt this course, from the same authority which enables them to exclude all direct communications between the jury and other persons, on the subject committed to their decision. But, if the court have any lawful authority to prevent the publication of the proceedings on a trial from day to day, on what reason can it be grounded, which will not equally extend to exclude spectators from attending the trial. For, if the court have no authority to sit with closed doors, it is because the people have a right to see that every one has a fair trial, and that justice is properly administered, or, if otherwise, that there shall always be witnesses, by which oppression, partiality or misbehavior of any kind, in judicial officers, may be proved and punished. It is true, that when the evidence of the prosecution has been offered against a prisoner, who may be innocent, he will lie under the ill impression, which it may make upon the minds of those who have either heard it or read it, until he has produced the evidence in his favor. But this he will do immediately afterwards, and, in all probability, it will also immediately be communicated to the people after the lapse of one or two days, at farthest. But the verdict of the jury, it is very apparent can never be affected by it, if the daily papers are kept from the jury; so that in general, the cause of justice is not all concerned in laying any such restraint.

The publication of the records of a court, if done maliciously, and without the consent of the court, is a contempt of a different kind, and seems to admit of no such justification or apology. It is also held to be a contempt of the higher tribunals of justice, and punishable as such, to prejudice the world with regard to the merits of a case before trial, by publications in relation to it; as if the counsel in a case should publish his brief. Lord Chancellor Hardwicke committed two printers to the Fleer prison, for publishing a libel against parties to a suit then depending, &ic. He observed on that occasion; ‘Nothing is more incumbent upon courts of justice than to preserve their proceedings from being misrepresented; nor is there any thing of more pernicious consequence, than to prejudice the minds of the public, against persons concerned as parties in causes, before the cause is finally heard. That it had always been his opinion, as well as that of his predecessors, that such a proceeding should be discountenanced. But that, notwithstanding it should be a libel, yet, unless it was a contempt of the court, he had no cognizance of it; for, whether it was a libel against the public, or private persons, the only method was to proceed at law. That, upon the whole, there was no doubt this was a contempt of court.’ See 20 Atk. 469. 2 Ves. 520.

With regard to the courts of the United States, the law concerning contempts of court is declared, by Stat. 1831, ch. 98.

In the first section it is provided,—

That the power of the several courts of the United States to issue attachments and inflict summary punishments for contempts of court, shall not be construed to extend to any cases, except the misbehavior of any person or persons in the presence of the said courts, or so near thereto as to obstruct the administration of justice, the misbehavior of any of the officers of the said courts in their official transactions, and the disobedience or resistance by any officer of the said courts, party, juror, witness, or any other person or persons, to any lawful writ, process, order, rule, decree, or command of the said courts.

The second and last section provides, ‘that if any person or persons shall corruptly, or by threats or force, endeavor to influence, intimidate, or impede any juror, witness, or officer, in any court of the United States, in the discharge of his duty, or shall corruptly, or by threats or force, obstruct or impede, the due administration of justice therein, every person or persons, so offending, shall be liable to prosecution therefor, by indictment, and shall, on conviction thereof, be punished by fine not exceeding five hundred dollars, or by imprisonment not exceeding three months, or both, according to the nature and aggravation of the offence.

The power of punishing for contempts, as it is not denied to the lowest tribunals of justice, it would be absurd to suppose denied to a legislative assembly, when in session, whether belonging to the government of a state, or to that of the United States. In the case of Yates v. Lansing, before the supreme court of errors, of the state of New York, it is observed by Piatt, senator, that ‘the right of punishing for contempts by summary conviction, is inherent in all courts of justice, and legislative assemblies, and is essential for their protection and existence. It is a branch of the common law adopted and sanctioned by our state constitution. The discretion involved in this power, is in a great measure arbitrary and undefinable; and yet the experience of ages has demonstrated, that it is perfectly compatible with civil liberty, and auxiliary to the purest ends of justice.’ 9 Johns. 417.

It is obvious, that this power, to a certain extent, is absolutely necessary to the exercise of all those other powers, with which the people have seen fit to invest the deliberative assemblies of their state and general governments, and the proper discharge of the important trusts and duties, belonging to their respective offices; and so far, must be considered as incidentally conferred by the mere creation of those offices and the assignment of their duties. Every deliberative assembly acknowledged by law, while engaged in the discharge of its public functions, must therefore be considered as tacitly invested with full authority, to take into custody any individual who should disturb their deliberations, by any act of violence, insult, or indecorum, offered in their actual or constructive presence, and keep him in confinement without bail or mainprise, until their meeting adjourns. To admit him to make explanations, by administering interrogatories, or to afford him an opportunity of making an apology, and to discharge him from imprisonment, upon any promises which he may make of good behavior for the time to come, are merely indulgences which they may grant at their discretion, but are under no obligation to do so. For, they have a right to take effectual measures to prevent interruption, and this can be done in no other way than by imprisoning the person of the offender. It is true, they may, if they see fit, direct their officer in attendance to carry him before a suitable magistrate on a complaint for a disturbance of the peace, and compel him to find bonds for his good behavior; but this remedy they have in common with private citizens, and is wholly collateral to the exercise of their own authority. Whether the legislature have an authority to fine for a contempt, does not seem settled, but there is not the same necessity for it, because they may secure their deliberations from disturbance without it, by keeping the offender in custody. If the legislature should adjourn without day, leaving a prisoner in custody, it would seem that he would immediately be entitled to his liberty, because his confinement would no longer be necessary. But, if the legislature have a right to fine and imprison for a contempt, in the same manner as a court of record, then they may imprison for a longer time than that of their own session. The distinction lies here, that where the legislature order an individual into custody for a contempt, it may be done, either as a mere measure to secure themselves from interruption, or, as a punishment inflicted on the offender for his contempt. In the former case, it is not necessary that there should be a formal judgment or decree, that the offender be imprisoned a certain number of days; but, in the latter case, if there is any judgment of imprisonment, the duration of it must be ascertained ; for the law will not permit an indefinite judgment. If the prisoner is fined, the amount of the fine must be ascertained in like manner, and for the same reason; if left uncertain, it would be merely void; or, the payment of the smallest sum imaginable would discharge it. This leads to the final reason, why a prisoner left in custody by the legislature at the end of their session, for a contempt, without any limitation of the duration of his confinement, must be discharged; i. e. because the imprisonment ceases to be lawful, as soon as the authority which imposes it, is determined. As it is considered of great consequence in a free government, that the legislative and judicial powers should, as little as possible, be exercised by the same hands; and as generally there seems to be no reason, why the legislature should have a power to punish for contempts, except that it does not seem consistent with their dignity, that they should be obliged to call on the judicial department for protection, it would seem no more than reasonable, that their power in this respect, should be limited by the necessity to which it owes its origin. Consequently, there seems to be no sufficient reason, why the legislature should ever pass a judgment of fine or imprisonment on an individual for a contempt. To pass such a judgment, is in the first place, to make a certain act a contempt; which, being done by a vote of the house, is an act of legislation, and such a law being passed after the commission of the act, seems liable to the exception of being ex post facto, and consequently unconstitutional. In the second place, the passing of such judgment is a judicial act of course. ‘ The legislature, therefore, so far becomes a court; and the jurisdiction not being defined either by the common law, or by the general, or any of the state constitutions, is discretionary, and may become arbitrary and tyrannical. It is very clear that the legislature have no authority to enact laws, which is not given either expressly or by necessary implication, in the constitution, whence the legislature derives its own existence. Yet a law, though enacted by usurped power, would have one advantage over an arbitrary decree, made for a particular occasion. The former would be certain, and might be known, and the people would be on their guard; but against a decree, grounded on the discretion or will of the house, as shown on a particular occasion, it is impossible that the people should be on their guard. These considerations are sufficient to show, that the legislature have no unlimited power, either to determine the extent of their own privileges by ex post facto laws, or decide from time to time as the case occurs, what shall, and what shall not be considered a contempt. Within their constitutional limits, without doubt, they may enact what laws they judge expedient in relation to both subjects. But, when a case occurs, offenders must be tried by the laws as they existed at the time of the act committed, and if by law it was not a contempt at that time, the legislature cannot, by any decree made afterwards in relation to it, constitute such act a contempt.

An imaginary, though not improbable case, may serve for illustration. Let it be supposed then, that the legislature of a state sit with closed doors, with the view of keeping their deliberations from the public, but the secret is suffered to leak out and is published in a certain newspaper. Suppose the legislature then send for the editor, and require of him to take an oath to answer interrogatories truly in relation to the subject of such publication, &c. and the editor refuses to take the oath, and the legislature commit him for the contempt, or fine him; is there any thing to be said to justify their proceedings? Certainly, nothing at all. For, unless some provision is made in the constitution, whence the legislature derives its authority, or, unless the legislature have previously passed some law making provision in such cases, it will be difficult to show, that the legislature have any power whatever to compel the attendance of any individual, who does not belong to their body, except as a witness on an impeachment. Where the legislature appoint a committee with authority to send for persons and papers, if the constitution and laws are both silent on the subject, it is merely the respect which a good citizen owes his rulers, which induces him to attend their summons, and not any implied authority over him in this respect. For, except in their capacity, as legislators, the legislative assembly have no higher authority than any other assembly of individuals of equal respectability.

When therefore the editor in the case put, is sent for by the house, unless he is summoned in writing, and a sufficient legal cause for his attendance is assigned in his notification, he is under no legal obligation to attend. If he should refuse to attend, therefore, and should be taken into custody, it would be a case of false imprisonment, for which he might have redress against the officer who attached him, and if he were imprisoned for the contempt and disobedience to the legislature, in such case he would be entitled to his release on a habeas corpus before a competent tribunal. For, a citizen can never be adjudged guilty and punished, for a peaceable assertion of his rights. But, on the supposition ^that he submitted to the order of the legislature so far as to attend, and he was then required to answer interrogatories under oath ; if he declined to take the oath, this of itself could be no contempt, unless an impeachment was then actually pending, and he was summoned to give testimony, or unless the legislature has a legal authority to resolve itself into a court of inquisition. For, it will hardly be pretended that, if the legislature should see fit to sit as a court, that they have authority to act in an arbitrary manner, and differently from all the regular tribunals of justice. If, however, the legislature should assume to themselves such a capacity, the person summoned should at least be informed that they are acting as a grand jury, in which case the person summoned to give testimony must submit to take the regular oath. If the editor were then asked, if he knew the author of a certain communication in his newspaper, and answered in the affirmative, and were asked again, who was the author, and refused to answer the question, he could never be punished for a contempt in such refusal, so long as he did not deny that he was the author himself, because the constitution protects every man from all attempts to compel him to give testimony against himself. But, if the legislature were then sitting as a grand inquisition, if the editor should once deny that he was the author himself, he would be guilty of a contempt if he did not answer and tell the name of the author, if he knew it, and were required to do so.

It has been suggested already, that where an individual is attached for a contempt, it is an indulgence shown to him to permit him to clear it by answering interrogatories under oath. It would be a perversion or misuse of this course, to use it as a means of proving the contempt upon the person in custody. It is true, if the act constituting the contempt, is clearly proved by other testimony, and the person in custody refuses to give such explanations under oath in answer to interrogatories, as would show there was no contempt in fact, he will be considered as guilty of the contempt; yet, if there is no satisfactory evidence of such act, he may, if he please, refuse to answer any interrogatories in relation to the subject. He may let the testimony against him remain as it is, without attempting to explain it away, and if there is not sufficient, the constitution will protect him from being compelled to confess under oath, which would be the consequence of answering interrogatories. As a matter of prudence, therefore, a person brought before the legislature for examination, should, before he takes any oath, ascertain for what purpose the oath is to be taken and the examination made, and whether his testimony is wanted to bring others to justice, or whether he is called on to answer interrogatories in relation to some supposed or alleged contempt in himself. To decline to take the oath until he is satisfied in relation to these particulars, ought not to be considered as a contempt, because it may be necessary for the protection of his own legal rights.

In the case put, if an editor is asked the single question, who is the author of a certain communication, and answers, that he does not consider himself bound to answer the question, without more, it seems difficult to make a contempt of it; for, if he is the author, he is protected by the constitution from having the confession extorted from him, and it would be absurd to suppose, that in order to avail himself of this protection, he must first confess his guilt to the court, to show that his case comes within it, by intimating that he is not bound to incriminate himself, &c. These few remarks are made here, because an individual taken unawares, or at short notice, and brought before the legislature, can hardly be expected to have the same self-possession, as when standing before the common tribunals of justice, with retained counsel, perhaps the best guardian of his civil rights ever devised, sitting by his side.

In the case of Anderson v. Dunn, it was held that either house of congress may arrest, at any place within the United States, any person who is guilty of a contempt to them, during their session, and imprison the offender until the end of it. See 6 Wheat. 232. The offence in this case, did not consist in occasioning any disturbance or direct interruption to the deliberations of congress, but, in offering a bribe by letter to one of the members. The power claimed and exercised therefore, was not limited to such direct contempts as might be offered to the house in their presence, but was extended to acts done out of the house, and where the offender might be at the utmost limits of the territory of the United States. It is impossible therefore but that such claim of power, where the occasions for its exercise, depending upon the mere discretion of congress to be ascertained by a vote, are indefinite and wholly unascertained by law, must excite great jealousy. For, in the first place, any individual may be brought from any part of the United States, in the custody of an officer, for any act whatever, which either house of congress may consider to be a contempt; and if an offer of a bribe to a single member is a contempt, what is to prevent the application of a similar principle, to other acts committed upon individual members? It has never been contended, that a libel on a member of the legislature is a contempt to the whole legislature, and yet it is not impossible, that some legislatures may vote it to be so. But suppose congress should see fit to consider some severe animadversions on their political management, as a contempt offered to them, will it be contended, that they have a right to take the offender into custody from a distant part of the United States, to be tried before themselves, and punished by imprisonment during the sitting of congress, when the constitution guaranties to all persons accused, 1. a right to a speedy and public trial, 2. by an impartial jury, 3. of the state and district, wherein the crime shall have been committed? Certainly, if congress has this power, all these safeguards, provided by the constitution for the liberty of the citizens, become wholly unavailing. For, if congress have a right to punish an act by imprisonment, then such act must be a crime, and the party cannot legally be punished without a legal trial. But, as congress may sit with closed doors whenever they see fit, if they try the accused in this manner, he cannot with propriety be said to have a public trial. The constitution guaranties an impartial jury; but, in this case, the contempt is alleged to be committed against congress, yet the members are to sit in judgment on it, both as a jury though hardly an impartial one, to ascertain the commission of the crime, and afterwards as judges to award the punishment of imprisonment. The constitution guaranties a trial in the state or district where the crime is committed; yet, in this case, unless the crime is committed within the district of Columbia, it is possible that the accused party may be tried a thousand, or even two thousand miles from such place.

Further; the constitution provides that no person shall be put in jeopardy of life or limb, more than once for the same offence; now it is true, there is but little danger that a man will be put in jeopardy of life or limb at all, in a trial for any species of contempt whatever; but it is wholly inconsistent with the benignity of the common law, or any law in use in the United States, that an individual should in any case be punished twice for the same act; i. e. for the sake of example, in the case referred to, that he should be liable to be punished for a communication in a newspaper, both as a contempt on the legislature, and as a libel on the same legislature—punished by the legislature for the contempt offered to them, and afterwards punished by a tribunal of justice, on an indictment for a libel on the same legislature. For, it will hardly be supposed, that a plea of former conviction made to the indictment, would be sustained by the commitment for a contempt by the legislature. It would be quite as great an absurdity, if he was punished for a contempt at Washington, and afterwards on a trial for a libel at Boston or New Orleans, should be acquitted of the charge, by giving the truth in evidence. It is true, Mr. Justice Johnson, in delivering his opinion in Anderson v. Dunn, observes, that ‘ the most absolute tyranny could not subsist, where men cannot be entrusted with power because they might abuse it; and much less a government, which has no other basis than the sound morals, moderation and good sense of those who compose it;’ 6 Wheat. 232. But this will hardly hold as a sufficient reason, why congress should be considered as entrusted with implied powers, which are not necessary, from a mere confidence that such powers will not be abused. The true principle seems to be, that the people have entrusted congress with whatever powers they judged expedient, in the constitution of the United States. Congress therefore may exercise all powers expressly bestowed on them by that compact, and all such other powers, as are absolutely necessary to the exercise of those which are expressly bestowed, but no other powers whatever. The power to punish for contempts, in the extended view we have taken of it, is neither expressly given to congress in the constitution, nor is it necessary to the exercise of any powers which are expressly given. The legitimate conclusion then is, that congress can lawfully claim no such power. If it was intended that congress should extend their powers or privileges at discretion, why was it thought necessary to enumerate their powers and define their privileges in the constitution?

With regard to the powers of both houses of congress, as well as the state legislatures, in determining the extent of their own privileges, the remarks of Parsons, Ch. Jus. in the case of Coffin T. Coffin, in relation to the constitution of the state of Massachusetts, may be considered as applicable by analogy. He observes, ‘In this state we have a written constitution, formed by the people, in which they have defined, not only the powers, but the privileges of the house, either by express words or by necessary implication. A struggle for privileges in this state, would be a contest against the people, to wrest from them what they have not chosen to grant. And, it may be added, that the grant of privileges is a restraint on the rights of private citizens, which cannot further be restrained but by some constitutional law.’ He remarks further in that case, ‘if the house of which the defendant is a member, had proceeded against the plaintiff for a contempt in suing this action; whatever had been the result of its proceedings, this court could not have interfered, or granted any relief, until the sentence had been performed.’ It will be recollected, that the plaintiff recovered judgment in this action, and according to the very opinion from which the above sentence is quoted. It is also clear that, in the opinion of this learned judge, if the house of representatives had imprisoned the plaintiff for contempt in bringing his action for redress against one of their members, the supreme court would have had no right to interpose. But it is much to be questioned whether this can be law.

In the case of Queen v. Paty and others, Ld. Raym. 1103. Sal. 503, the defendants were brought into the court of king’s bench on a habeas corpus, having been committed to Newgate by the house of commons, for bringing an action in which they recovered, in contempt of what was alleged to be the privileges of the house of commons. Holt, Chief Justice, held, that the suit was no breach of the privileges of the house of commons, nor could their judgment make it so, nor conclude that court, (king’s bench) from determining the contrary. ‘When the house of commons,’ he observes,’ exceed their legal bounds and authority, their acts are wrongful, and cannot be justified, more than the acts of private men. There is no question but their authority is from the law, and as it is circumscribed, so it may be exceeded. To say, they are judges of their own authority, and nobody else, is to make their privileges to be as they would have them.’ This great judge however was overruled by the other judges. It was held, that the house of commons was a court, and higher than the king’s bench, and were exclusively the judges of their own privileges, &c. &c. But, however the law may be in England, it is believed, that under the constitution of the United States, as well as those of the several states, an act so arbitrary as that supposed by Chief Justice Parsons, would be decided to be illegal and void, by every supreme court in the union, and that either of them would not hesitate to assume jurisdiction and discharge the prisoner on a habeas corpus. Is the house of representatives above the law and the constitution? If they are not, then it is possible that they may commit a man to prison in violation of both. And shall it be endured, that a man shall be kept imprisoned within the United States in violation of law, for want of a tribunal of competent jurisdiction to release him?

It is true, that in ordinary cases, there would be but little danger, that congress would ever make an unwarrantable use of any powers, with which they might be entrusted, for the sake of oppressing an individual, and far less, that they would intentionally usurp power where none was intended to be given, with any such view. For, so long as an individual was not particularly out of favor with the people, the dread of doing an unpopular act would infallibly be sufficient, without any other consideration, to prevent any act of direct injustice or oppression, from being agreed on by a majority of any legislative assembly in a popular government. But what is to become of the rights of an individual who has no such protection? Suppose that he has rendered himself odious to the leaders of the prevailing party by opposition to their schemes. Suppose that he has rendered himself unpopular and hateful to the people, by resisting, what he may consider, their prejudices and erroneous opinions. Suppose that he has said something in disparagement of the great goddess Diana of the Ephesians, that came down from heaven; in any such case, if he may be brought from a distant part of the country for the contempt, to be tried before such a popular legislative body sitting as a court, what security can he have, that he may not fall a victim to political tinkers and coppersmiths?

It is not intended however to deny, that congress has full authority to do any act, which may be necessary to free their deliberations from disturbance or constraint of any kind. This power is absolutely necessary to a faithful discharge of their public duties, as well as the exercise of all powers expressly delegated to them in the constitution. For, it was well supposed, that the utmost freedom of observation, discussion and debate would be fully repaid, by the greater wisdom and prudence of all measures which congress might adopt. The constitution accordingly provides, that ‘for any speech or debate in either house,’ no senator or representative shall ‘be questioned in any other place ;’ the meaning of which obviously is, that he shall not be called to account for what he may have said in congress, either on a civil or criminal prosecution before any tribunal of justice; nor before any other legislative assembly, or public body having political power, as the legislature of any of the states; for, the common law is sufficient to protect him from being called to account by persons, having no lawful political power whatever.

If, however, either of the houses of congress should suffer its members to be threatened for any thing said in debate, or to be waylaid, and assaulted in going or returning, they would compromise their own dignity as well as the respect due to their constituents, in whom the national sovereignty undoubtedly rests in the last resort; and such forbearance on their part should be ascribed to anything, rather than to a want of authority to put a stop to such outrages. The reader will immediately perceive, that allusion is here made to the ferocious assaults, committed at different times during the present session of congress, on two of its members, by armed persons, in pursuance of threats previously given out by them, and the gross personal indignity offered to a third member of congress, by another individual, whose conduct in this instance alone, would suffice to show in what light he must be considered among civilized and respectable people. It must appear singular to reflecting persons, that congress could suppose that so mild a punishment as a gentle reprimand, which, whatever may be the case here, in fact is no punishment at all, except to those who have the feelings of gentlemen, or at least have some remains of character to preserve, would be sufficient to deter men who had made up their minds to gratify their vindictive feelings, at whatever risk of life from their brutal attempts. What is worse, there does not appear to be any sufficient grounds in law, for the proceedings of the house of representatives in this respect; for, the sentence of reprimand appears to be no less illegal, than the result shows, that it was ineffectual, when considered as a warning to others. One would naturally have supposed, that the proper course to be taken in any such case, until congress shall see fit to make provision in relation to the subject by law, would be, in the first place, as soon as complaint is made, to take the person accused into custody, and after hearing what he had to say, if he did not exculpate himself, to keep him imprisoned during the rest of the session, not, as a punishment to him; but, as a measure necessary to secure themselves from further annoyance by him. This would not at all interfere with a prosecution before the tribunals of justice, on an indictment for a breach of the peace, nor with any process against him, for the purpose of binding him over to his good behavior; in either of which cases, the house of representatives might, at their discretion, release the offender from their custody.

Continued inPART II; CHAPTER IV: Of the Law of Libel in relation to Public Officers, &c.

See the other parts of this series:
RIGHTS OF AMERICAN CITIZENS: General Rights; Division One
RIGHTS OF AMERICAN CITIZENS: General Rights; Division Two
RIGHTS OF AMERICAN CITIZENS: General Rights; The Social Compact
RIGHTS OF AMERICAN CITIZENS: The Powers delegated to the General Government in the Federal Constitution
RIGHTS OF AMERICAN CITIZENS: Powers delegated to the State Governments
RIGHTS OF AMERICAN CITIZENS: The Independence of the States
RIGHTS OF AMERICAN CITIZENS: The rights reserved to the people of the United States
RIGHTS OF AMERICAN CITIZENS: Of the right of suffrage and of elections
RIGHTS OF AMERICAN CITIZENS: The Liberty of Speech and of the Press
RIGHTS OF AMERICAN CITIZENS: The Power of Courts to punish for Contempts
RIGHTS OF AMERICAN CITIZENS: The Law of Libel in relation to Public Officers
RIGHTS OF AMERICAN CITIZENS: The mode of obtaining redress for infringement of civil or political rights


RIGHTS OF AMERICAN CITIZENS: The Liberty of Speech and of the Press

LibertySpeechThe Rights of an American Citizen: With a Commentary on State Rights, and on the Constitution and Policy of the United States by Benjamin Lynde Oliver published 1832


CHAPTER II; Of the Liberty of Speech and of the Press.

“We have no government armed with power capable of contending with human passions unbridled by morality and religion. Avarice, ambition, revenge, or gallantry, would break the strongest cords of our Constitution as a whale goes through a net. Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” ~ John Adams

1st-amendIt is a prevailing error among persons, who have not ‘been properly educated, that the less restraint there is in the laws and constitution of a state, the greater is the share of civil liberty which the citizens enjoy. The reverse is much nearer the truth. The restraint of the violent, licentious and unjust, constitutes the only safe foundation for the liberty of the just, peaceable and well disposed. It is the sole object of civil government to protect the latter against the injustice and violence of the former. When an outcry is made for a greater degree of liberty, than is already enjoyed, an inquiry should always be made, what sort of persons they are who make the outcry, and what is the nature of the liberty for which they ask? Is it a freedom to practice wrong upon others with impunity, which they claim, or is it security from having it practiced upon themselves? The former is as shameless and reprehensible, as the latter is reasonable and proper.

There is no government so bad among civilized nations, as to acknowledge as a principle, the right to compel the performance of wicked actions, or to hinder the performance of any actions, which are indispensable to the discharge of any duties of perfect or even of imperfect obligation. There is but little ground to apprehend an infringement of liberty in either of these respects. But, it is in relation to those actions, which, in a moral point of view, are indifferent, that a nation should be considered as enjoying a greater or less degree of civil liberty. Under tyrannical governments, indeed, it is common to say that one is more free than another, because of the greater or less liability to the violation of personal rights in one than in another; but, in fact, where either life or property may be taken from a citizen without law or trial, there is no liberty at all. A law, made to prevent the citizens from doing things, which if there were no such law, they might do without impropriety, is a restraint upon those only who would do them, if there were no such law. If therefore the tendency of any such act, is found to be injurious to the welfare of the community, it may be prohibited out of regard to the public good, and this ought not to be considered as any infringement of the liberty of the citizens. For, as soon as the law is passed, the citizens have notice, that such acts are inconsistent with the public welfare. This notice alone would be sufficient to prevent a good citizen from doing them, if there were no law against it. The law therefore is passed for those citizens, who can be restrained in no other way, and though it is a restraint upon the bad, constitutes the only security of the good.

Where actions, which in a moral point of view are indifferent, and do not at all interfere with or interrupt the welfare or prosperity of society, are prohibited, it constitutes an infringement of liberty; and, if such prohibitions result from the caprice of the rulers, or, are imposed by them to subserve some selfish interests, it constitutes a direct invasion of civil liberty, and a nation is deprived of its freedom in proportion to the number of such unnecessary restraints. But prohibitions and restraints, however numerous, so long as they contribute to -the happiness and prosperity of society, are no infringement of civil liberty. How excessive therefore is the simplicity of those peaceable and well disposed citizens, who join in the clamor, which factious and unprincipled men make for the repeal of laws, which impose salutary restraints! For, what is the true motive of the outcry, which such turbulent individuals raise on such occasions? Is it patriotism, and a regard for the liberties of the citizens, as they pretend? Or, is it because they are not unwilling to sacrifice the welfare of society to advance their own private interests, and wish to annul all laws, which prevent them? But, is it wisdom in the sheep, to desire the wolves to be let loose among them?

In applying these remarks to the subject of the present chapter, it may be observed, that every man has a natural right to express his honest sentiments on every subject that arises. But, he has no right to misrepresent facts; neither has he a right to tell even the truth with any malicious or ill intention. The limits of this right in a state of nature, are therefore very apparent, and consist in benevolence as to intention, truth as to statements, and sincerity as to sentiments and professions. In civilized society, the right of freedom of speech, is further restrained by such regulations, as political expediency may have imposed with a view to the public welfare. But, as the laws of society impose restraints upon the natural right of freedom of speech, in certain cases from motives of policy, so, on the other hand, in certain cases, it suffers simple falsehood however naturally wrong, to escape with impunity. The first is punished, because a violation of express law; the latter is passed over unnoticed by the law, in cases, where it is presumed, no ill consequences ensue.

To be more particular; no language however false or malicious is considered in law, as a sufficient justification for personal aggression. So, also, no redress, can be had by applying to any tribunal of justice, for any language of mere insult or contumely, however false and malicious, unless it charges a man with having committed some crime; or, impeaches his character, skill, capacity or integrity in his trade, profession or occupation ; unless some instances of particular damage sustained in consequence, can be established by evidence; or, unless it charges him with some disgusting distemper, that renders him unacceptable among decent people.

But, by the law of nature, where a man has suffered injuries of the kind just referred to, whether they are such as he might obtain redress for, by the laws of civilized society or not, it would be difficult to show that he had not a right to use the same means to obtain reparation, which he has in case of other injuries offered to his person. Those injuries, for which no action can be maintained before the tribunals of justice established in an organized community, are supposed by the law to be too inconsiderable to be a subject of legal animadversion; and as the exercise of the right of obtaining reparation personally, would lead to continual breaches of the peace, the policy of society forbids recourse to any such measures. In this way it happens, that no redress whatever can be had for words of mere contumely or insult. Yet, unfortunately, it seems that those very injuries, which consist in opprobrious language, considered by the law of too little consequence to maintain an action, are among the most frequent causes of bloodshed by duels. For, men, who are not under the influence of Christianity, if they find that they cannot obtain protection or reparation under the laws of society, which it was organized to furnish, are very apt to consider the law of nature as still so far subsisting; and therefore adopt the same measures to obtain redress for such wrongs, as if no society had ever been organized. This view of the subject points out at once, both the cause and the remedy of dueling. For, legislation against dueling will always remain unavailing, until either some adequate means of obtaining redress, for such injuries as commonly lead to duels, are provided by law; or, such heavy penalties are imposed, as will prevent such injuries from being offered. Such measures, it is true, would considerably abridge the freedom of speech among a certain class in society, but, it cannot be doubted, that an advantage would arise to the public in general, from such a restraint upon the licentious and ill bred.

Free_PressIn the first amendment to the constitution, congress is prohibited to pass any law, to abridge the freedom of speech or of the press. It has never been pretended, that congress has any power to enlarge the natural right, which men have of communicating their sentiments to each other, and consequently this amendment was made merely in order to prevent this natural right from being abridged. When, therefore, the limits of this natural right are once clearly ascertained, no law, though made by congress for the express purpose of punishing those, who overstep the limits of this natural right, will be unconstitutional on the mere ground that it abridges the freedom of speech. For, as it is the natural right which congress is forbidden to abridge, if congress merely punishes those acts which have no authority at all in natural right, the constitution will not be violated. This view of the subject is sufficient to show, that congress is not prohibited by this amendment to the constitution, to enact any laws which they may think proper, to punish libels upon those who are engaged in the administration of the general government. For, no man has any natural right to slander another, by inventing, circulating and publishing malicious falsehoods in relation to his character. Consequently, no natural right is infringed by a law enacted to punish such injuries.

In republican governments, however, as the election of the rulers is made by the people, it is necessary, in order to put it in their power to make a judicious selection, that they should have great freedom, both in discussing the tendency of all public measures of the administration, as well as the conduct of all public officers. They ought also to be permitted to express their conjectures or suspicions as to the motives by which those officers are actuated. They ought also to be allowed to communicate to each other, with the utmost freedom, what they know or have heard, as to the principles, religious, moral or political, of any candidate for any public office, who consents to stand, as likewise, as to his general private character or conduct. This freedom seems necessary to enable the people to give their votes with proper intelligence and discrimination. Because, a bad moral character is decisive proof, that a man is not properly actuated by religious principles, however he may profess them, and no man whose conduct is not thus actuated, is a safe depositary of any office of trust, public or private.

But, no man has a right, either legal or moral, to traduce the character of any candidate for public office, upon mere surmise. If therefore he undertakes to state any facts or circumstances, which are injurious to the character of a candidate for office, it ought not to be considered any abridgment of the freedom of speech, or of the press, that he should be held answerable for damages in a civil action, unless he can prove the truth of his statements; and, if such false statements are circulated through the medium of the press, there is no hardship upon the wrongdoer, in holding him answerable criminally, on an indictment for a libel.

With regard to the constitution of the United States, as well as the constitutions of the respective states, as also, the general and state administrations, it is essential to the liberty and welfare of the citizens, that great freedom of observation and discussion should be permitted. Because, if there is any thing defective in the Federal Constitution, or, in any of the state constitutions, the people ought to have an opportunity of having it pointed out, in order to avail themselves of the power of amendment, which is reserved to them. So, if any measures of the general administration, should be thought to be inexpedient, unjust or dishonorable, the citizens ought to have a right to express their opinions to each other, in order that those rulers or other officers, who may have forfeited the confidence of the people and betrayed their own trust, may be removed from office. The same reasons apply to the state administrations. Great latitude of remark should be permitted here, because freedom of remark and discussion on these topics, tend to enlighten the people and enable them to remedy any particular evils which may be found either in the frame of government, or in the laws, or in the administration of public affairs in general.

But it would be a gross abuse of this right, which it would be no violation of the constitution to restrain by law, to make a pretext of it, in order to bring the whole frame of government into contempt with the people, with the detestable object of inducing them to throw off all government, and thus introduce a state of anarchy and confusion.

Most of the preceding remarks are applicable to the freedom of the press, as well as to the freedom of speech; and the salutary and reasonable restraint of both, by enacting laws for the punishment of slander, or libels, whether against individuals, or against decency and good manners, furnishes no juster cause of complaint, than all offenders have ; who may complain with the same propriety against laws made to punish theft, robbery and murder, as being made in restraint of freedom of action.

But, in relation to the freedom of the press, it may be observed, that the press is said to be free, when it is not required by any law that writings, intended for publication, should be subjected to the inspection of commissioners, appointed for the purpose of examining literary works, and determining whether the publication of them will or will not have a bad effect upon the cause of religion or morality, and licensing or forbidding their publication accordingly. By our law no man can be restrained from publishing whatever he pleases, because he is not under any obligation to submit his works to the examination of any person or persons, previous to publication, and, until publication, no one can know what the work contains. But, the author and publisher are both held answerable, civilly, for damages done to individuals, and criminally for the public offence if any is committed by such publication, in whatever it may consist, whether in its tendency to lead to a breach of the public peace, or to corrupt the public morals. The constitution also forbids congress to lay any such restraint on the press, as should require authors to submit their writings to the inspection of any one before publication; so that, whatever expediency may dictate in relation to the subject, congress cannot impose any such restraint upon the freedom of the press without violating the constitution. Whatever the truth may be as to the soundness of this policy, it is the more popular doctrine, that it is a less evil to give every individual an opportunity of publishing his lucubrations, however offensive they possibly may be to decency and good morals, and even though they should be filled with blasphemy and licentiousness, than to require him, before publication, to submit them to the inspection of any individuals, though selected by the people for their wisdom, knowledge and virtues. But, it must be acknowledged, that some compositions have a most detestable tendency, and, that when once published, it is absolutely impossible to suppress them. In ordinary cases, it is most surely gross folly to lose an opportunity of preventing an evil, which, as soon as it exists, becomes incurable and remediless. But it will be objected, that in this case it cannot be done without infringing the liberty of the citizens. This is one of the pretenses, which are always made use of, to keep good men in bondage or else in continual strife with the perverseness of the dissolute, as if there were any hardship in restraining bad men from doing what good men esteem it a crime to commit. It is not to be doubted, that much of the difficulty of obtaining the consent of the people to subject the press to salutary regulations, arises from the repugnance of authors to submit their works to an examination to decide upon their merits; because such an inspection of their works seems to imply some superiority in the inspectors. But, if the examination is confined to the simple inquiries, whether the composition has any article in it, tending to sap the foundation of religion or morality, or to disturb the general tranquility and welfare of society, no one will have any reason to complain but the advocates of Atheism, Anarchy, and universal licentiousness. It may readily be shown, however, that any such restraint, after the character of a work is once ascertained, would not be contrary to the true spirit of the constitution; because the constitution intended only to prevent congress from restraining the natural right of the citizens, to impart their sentiments freely to each other. But this right does not extend so far as to protect attempts to corrupt society and overthrow its institutions, by setting open a gate, through which blasphemy, impiety, indecency, irreligion, and bad principles may enter, and, having once taken possession, introduce their followers and attendants, vice, immorality and every species of corrupt practice. It is true, the admirers of such writers as Paine, Byron and Moore, if the most exceptionable writings, or passages in the works of each, had been suppressed or expunged, would have had reason to complain, that the principal beauties of those authors, according to their opinions, were strangled in their birth, yet, it is believed, that most persons of consideration and reflection are of opinion, that the preservation of the principles and morals of the young and inexperienced, is a more than sufficient counterbalance for the loss of all the brilliant or spicy passages in the writings of either of those authors, even though accompanied with the total suppression of the rest. But, as long as those who profess to aim only at the public good, are unwilling to submit to any such tribunal, though their works would not be affected by its decrees, it will be vain to expect such as have no way of effecting their base or selfish purposes, but by the perversion of the liberty of the press, to agree to such a restraint of this liberty, as would put an end to their schemes and defeat their intentions.

But, in a political point of view, in which it is probable the subject was principally considered by those, who framed the first amendment to the constitution, nothing could be more odious to a free people, than to have the press subjected to the control of the government, or to the administration for the time being. For, in this way, the liberty of the people would cease to be any thing more than a theme for public declamation, without any existence in reality. Because, the censors, being under bondage to those who appointed them, would permit nothing to be published, however true, that might reflect disgrace upon the administration; and, consequently the most odious and impolitic measures, the most tyrannical acts, and the most gross public injuries would alike escape without redress or even animadversion. Party bias and corruption, it is true, are found to take the place of restraint, in some measure, in producing similar effects, since if credit is to be given to what the editors of public journals say of each other, there is no public measure, however just and expedient, of any administration, which will not be decried and imputed to degrading motives by its opponents; while on the other hand, there is no act, however immoral, however degrading to the national character, however unjust in itself, which will not be either applauded, justified or extenuated, by the editors of administration papers for the time being, according to the supposed various degrees of credulity in political partisans; and generally there seems to be hardly any absurdity, however incredible and monstrous, which some editors will not be shameless enough to force into the mental repositories of their readers, and which, however difficult of deglutition, certain readers will not be willing to receive, as the richest intellectual food. It may be urged, indeed, that if delusion and error arise from these sources, it can happen to such only as prefer darkness and prejudice, to light and just perception; because, on the supposition, that all party papers contain more or less sophistry and misrepresentation of facts, as well as carefully suppress the mention of all circumstances favorable to the views of their opponents, a person who makes it a rule to disbelieve totally whatever one party asserts to the disadvantage of the other, or in praise of its own leaders, unless established by proof, will not be liable to fall into any dangerous error or mistake. This however will be an insufficient protection for those simple persons, who, from whatever motive, confine their reading to the publications of the party whose livery they wear, and consequently are entirely in the power of the editors who furnish them with their daily portion of news and intelligence, and instruct them what ground they are to take in relation to all unexpected occurrences in the political world. For, such simple persons, having neither knowledge nor principles, by which to regulate their own conduct, if any circumstance should be alleged to the disadvantage of their party leaders, would act imprudently, if they ventured to express any public opinion in relation to it, before they had received their direction from the view taken of it in the newspapers of their own party. But, as soon as this view is published, there will no longer be any danger of committing themselves; but, they will know at once whether to deny the fact charged, or, to justify or palliate it, or, to make use of recrimination.

If the freedom of the press consists in the right of publishing to the world our sentiments, on whatever subjects we please, this freedom will be found to be restrained by a variety of circumstances, altogether independent of any provisions of the law.

It has been suggested already, that if a person publishes any thing offensive to good manners, he may be indicted and punished for it as a crime, whether the fact alleged be true or not.

So, a person may be indicted for a libel on the character of an individual, and punished for it as an offence against the public peace. In such cases, the punishments imposed by law, operate as restraints upon the freedom of the press, by making publishers answerable for the consequences, and sometimes even for the tendencies of what they publish. But the restraints alluded to, are of a different nature from these, and operate a priori, to prevent publication directly, and not, to produce that effect merely by punishing such as ought not to be made. These restraints however are confined to newspapers and periodical journals: For instance; suppose an individual is desirous of publishing his sentiments on some subject, whether connected with religion, morals, political economy, or a mere party question; here it is obvious, with whatever justice, truth or ability those sentiments may be expressed and enforced, unless he is willing to go to the expense of publishing a book or pamphlet, it is quite uncertain whether he will be able to lay them before the public. For, if the editors of the journals or newspapers, to whom his composition is offered, should entertain a different view of the subject, and should be apprehensive that the communication would alter the opinions of the subscribers to their journals or newspapers, there can be but little doubt that they would refuse to publish it, though perfectly free from the least tinge of irreligion or immorality. This would be most strikingly true, if the composition offered were of a political nature, but did not coincide with the opinions or prejudices of the editor, or those of his subscribers, or his party in general. And the more eloquent the composition might be, and the more convincing and persuasive his reasonings, if they tended to remove any of the foundations upon which the party was erected, the less probability there would be that the editor would consent to the publication. Because, however great a friend the editor of a party newspaper may be to truth and the interest of his country, or in other words, the general welfare of the whole, it cannot be doubted that he will prefer the interest of what he considers the better part, to wit, his own party.

These reflections are sufficient to make it apparent, that the public journals as at present conducted, are by no means so favorable to the propagation of truth and the diffusion ‘of correct information, where political questions are concerned, as they are sometimes supposed to be. For, though a popular error or prejudice is already tottering on its foundation, as soon as the people are willing to hear it spoken against; yet, if the means of communication are kept from them, each individual must of course correct his own errors and mistakes for himself, and will derive no assistance from the superior ability or illumination of any of his neighbors. It follows, that so far as newspapers are concerned, the press is not free, but each writer or paragraphist must submit his piece for examination and license, not to a learned chancellor, not to a body of men selected for that purpose on account of their wisdom, virtue and integrity, but to the learning, political integrity, and impartiality of the editor of a party newspaper. Such freedom of the press is hardly worth the trouble of protection.

In order that the press should be free from any restraints but those of religion, decency and good manners, by which, it is hoped it will always be controlled, the management of a newspaper should be considered as a public employment, and the editor should consequently hold himself out to his fellow citizens, as pledged to no party or faction whatever, but, like a common carrier, ready to receive all comers, who were willing to pay a stated reasonable compensation for the insertion of their communications, provided they were free from libelous matter of any kind. If the people at large were to make it an inflexible rule, to patronize by their subscriptions those newspapers only which should be conducted on this principle, it is believed it would be attended with the happiest political effects. For,

1. It would be impossible to corrupt any editors of newspapers with the prospect of deriving any advantage from it, without its being exposed at once; since each individual would have an opportunity of inserting his communication, in its turn, in anjr of the daily newspapers, provided it had not already been published, and, if its publication were refused without the allegation of a sufficient satisfactory reason, the public would immediately perceive the true motive.

2. The demoralizing spectacle of the array of many of the newspapers in the country against each other, in the most indecent and ungentlemanly opposition, accusing each other of falsehood, bribery, corruption, &c. &c. would wholly cease. Each editor would consider himself officially neutral, like a judicial officer, and would hold himself in no manner accountable for the communications of his correspondents, any further than to see that they did not violate the dictates of good manners, and the laws of the land.

3. The editors of newspapers would then enjoy the highest degree of true independence and respectability. For, by the impartial discharge of their duty, it would be as much impossible that they should give offence to any reasonable man, by the insertion of communications which did not agree with his particular opinions, as it would for the owner of a public vehicle to give offence to some of his customers, by carrying others of different political sentiments.

4. They could never be accused of being the mere tools of a faction, when their papers were equally accessible to the communications of all persons, of all parties, or of no party.

5. The leaders of any party or faction would have no motive to attempt to hire or corrupt any press, because it could not remain concealed from the public, but would immediately be detected and hooted at by the abused people; the nature of the communications published, and those which would be rejected, furnishing conclusive internal evidence.

6. No editor of a paper would then ever feel compelled by interested considerations, to wear the livery of any party or faction whatever, and would be under no temptation to act from any other motives than a regard for truth, justice and the welfare of his country.

For further remarks on the Liberty of the Press, and some adjudged cases as to the legal liability of Editors, see Chap. IV. of this part.

Continued inPART II; CHAPTER III: Of the Power of Courts to punish for Contempts.

See the other parts of this series:
RIGHTS OF AMERICAN CITIZENS: General Rights; Division One
RIGHTS OF AMERICAN CITIZENS: General Rights; Division Two
RIGHTS OF AMERICAN CITIZENS: General Rights; The Social Compact
RIGHTS OF AMERICAN CITIZENS: The Powers delegated to the General Government in the Federal Constitution
RIGHTS OF AMERICAN CITIZENS: Powers delegated to the State Governments
RIGHTS OF AMERICAN CITIZENS: The Independence of the States
RIGHTS OF AMERICAN CITIZENS: The rights reserved to the people of the United States
RIGHTS OF AMERICAN CITIZENS: Of the right of suffrage and of elections
RIGHTS OF AMERICAN CITIZENS: The Liberty of Speech and of the Press
RIGHTS OF AMERICAN CITIZENS: The Power of Courts to punish for Contempts
RIGHTS OF AMERICAN CITIZENS: The Law of Libel in relation to Public Officers
RIGHTS OF AMERICAN CITIZENS: The mode of obtaining redress for infringement of civil or political rights
The Importance of Free Speech and The Free Press in America

RIGHTS OF AMERICAN CITIZENS: Of the right of suffrage and of elections

ElectionIntegrity1The Rights of an American Citizen: With a Commentary on State Rights, and on the Constitution and Policy of the United States by Benjamin Lynde Oliver published 1832


CHAPTER I: Of the right of suffrage and of elections.

In governments, where the power is retained in the hands of the people, and is exercised in their name by such delegates as they see fit to appoint from time to time for that purpose, the right to take a part in such appointment or delegation, belongs to every constituent member of the social compact, upon which the government is grounded. This right, in whatever manner it may be exercised, is the right of suffrage. It also comprehends within it, the right which each member has of voting upon all subjects, in relation to which the people see fit to exercise their political power personally, and not through the medium of representatives or delegates.

ElectionIntegrity3The simplest form of a popular government, is that of a pure democracy, where the people meet together in primary assemblies and make such laws and regulations for the conduct of the members of the society, as they see fit. In the formation of any such government, a difficulty would meet them at the outset. For, as soon as any measure was proposed, it would immediately be found that some would be in favor of it, while others would be equally opposed to it. In this case, one party or the other must recede, or the society would be dissolved. Because each individual would think himself justified in saying that he did not intend, by joining the society, to have his feelings or interests made a sacrifice to those of others; that therefore nothing should be done without his concurrence, or he would secede. This, it is obvious, he would have a perfect right to do, until some regulation on this subject had been unanimously agreed upon by all the members. It would soon appear, therefore, since perfect unanimity could seldom be found among them, that the society would gradually melt away by the withdrawing of discontented individuals, unless some substitute for it were agreed upon by the society. They would therefore very naturally adopt the principle of mutual concession, and agree that the will of the greater number should bind the whole society, in the same manner as if they had all been unanimous. Not that this is always to be considered as conclusive proof, that the measure approved of by the majority, is really the most wise and expedient; for, perfect unanimity itself would afford no such proof. But as, according to the democratic theory, all the associates or members of society are equal in wisdom and virtue, as well as in their rights, the probability that a measure is wise and expedient, is in direct proportion to the numbers who vote in favor of it, and vice versa. It is true, only a few out of the whole number, really possess wisdom, but those few are perhaps more likely to be found in the majority of the whole, than in the minority. But, however this may be, experience teaches us, that every man supposes himself to have his share, and whether he have or have not, at all events he has a will, and this he will never yield to the control of another spontaneously, unless he finds it for his interest to do so.

It is very clear, therefore, that though it may be perfectly natural, in the familiar use of the term, that the members of a society should agree, at the first formation of it, that the express will or vote of the greater number, should always have the effect of perpetual unanimity, yet this effect has no other foundation whatever, in natural right. For, it is believed, a case can neither be put nor imagined, where, independently of a previous agreement, that the vote of the majority shall prevail, the greater number have any such right to control the whole society, that the smaller number, or minority, are under a moral obligation to submit to their decision. On the contrary, the right of self preservation, as well in the smaller number as in the larger, must always be paramount, in the absence of express agreement, to any such pretended right in others, whether more or less numerous. Each individual has a right to place his own safety on the exercise of his own judgment alone. , The man at the helm has as much right to steer a ship on Scylla, if he thinks self-preservation demands it, as all the rest of the crew have to compel him, if they can, to turn towards Charybdis. If therefore necessity itself acknowledges no such paramount right in the majority, it is clear that it can have no other just foundation, than that of convention or agreement. selves as well as their country, and so favorable a conjuncture will enable them to command the highest price.

The prevalence of the democratic notion, that the majority have a natural right to decide and govern the whole, has probably prevented an examination of the question, whether a better rule might not be adopted in public assemblies than the usual one, that the vote of a mere majority shall decide in all cases. That there are many inconveniences resulting from the adoption of it, is very clear; and that these inconveniences may not be obviated by a modification or qualification of this rule, is not easily demonstrable.

The inconveniences which result from the adoption of the rule, that a majority, however small, and though consisting of a single individual, more than the number of the minority, shall be sufficient to determine the rejection or adoption of all public measures, however important, are the following, viz.

1. The casual absence of one or two members, may enable the minority to pass laws or adopt other public measures, entirely contrary to the will of the majority.

2. If there is merely the difference of one between the majority and the minority, any single individual has it in his power to control the whole legislative body of which he is a member, and may turn the scale in all cases when the whole number is thus divided, at his caprice or discretion. Here the individual, having the least reputation to preserve, the least regard for principle; and who is most susceptible of corrupt influences, will be most apt to gain the ascendancy. For, men of character and principle will stand firm, out of a regard to duty and consistency. But unprincipled men will sell them

3. But, upon the improbable supposition, that there is not a single unprincipled individual in the legislative assembly, it follows, that the person possessing the most feeble intellect, and who consequently is the most wavering and unsettled, will immediately become of the greatest influence and importance. All the rest may be firm from a settled conviction of the justness of their views of the subject. But, this individual having less knowledge and discernment, will act from motives of ostentation and vain glory.

4. But, if they are all men of sense and integrity, still it is found by experience, that a public measure of any considerable importance, which is adopted by the vote of a small majority, is of doubtful expediency, and seldom attended with a good result. The reason is, not only because the minority is so numerous, that it may be considered an equal question, whether in reality the adoption of the measure is wise or not; but, because the people immediately become divided into factions in relation to the subject. The question, though settled for that time, will be brought up again and again. The public mind is kept in a state of excitement and exasperation in respect to it. Intrigue and corruption are resorted to. The public policy in relation to the great interests of the country, continue uncertain and wavering, because laws are first enacted, then modified, then repealed, then re-enacted with qualifications, &c. &c. The parties prevail alternately, but never without great heat, strife and animosity, and if the question is ever finally settled, it is through the influence of any considerations, rather than those of justice, wisdom or public expediency.

Many of these inconveniences would be avoided by requiring the sanction of a larger proportion, than a mere majority of a quorum. Let a decisive majority consisting of two thirds of a quorum, always be necessary to authorize a change in the existing state of public affairs, by the adoption of new measures, and there would be an end to most of the evils just referred to. For, unless the expediency of a law or other public measure, were very apparent, there would be no probability, that two thirds of the legislature would be in favor of its enactment or adoption; and, if so, the opposition would have but little prospect of success in any attempts, which they might make to procure its repeal. Thus public policy would be less subject to change. For, as it would require the concurrence of two thirds to enact a law, it would also require the concurrence of two thirds to repeal it. This would produce a proper caution in the enactment of laws; for, though a fraction over one third of the quorum, would be sufficient to prevent the enactment of a law, a majority of twice that number would be necessary to procure any modification of it. This rule is wisely adopted in relation to amendments of the constitution, where frequent changes would be absolutely intolerable; and it is believed, great advantages would immediately be perceived, if it were extended to the acts of the federal and state legislatures.

In the election of rulers and other public officers, different considerations will necessarily vary the conclusion. Here, a mere majority of voices ought to be allowed to prevail; because if two thirds were required, it would always be in the power of a numerou s minority to prevent the choice of any other candidate than their own. A plurality of votes, where there are more candidates than two, ought not to be sufficient to constitute a choice; because, in this way, there is a possibility that the individual most odious to a majority of the voters, may prevail in the election.

C-Voter-ID(1)In a republic, or any form of government more complicated than a simple democracy, of which a town meeting for the making of by-laws may be considered a fair example, all the voice or influence, which the people have in the regulation of public affairs, is exercised through the medium of senators, delegates, or representatives, whom they choose to act for them in the various capacities established by their constitution, or frame of government. If they would make the most advantage of their right in this respect, it is obvious that they should take care to select men of integrity, and well qualified to discharge the duties of the offices which they are expected to fill. For, since the people have a right to vote for any candidates whatever, who have the necessary legal qualifications, the advantage of the right of suffrage, depends upon the opportunities, which it affords the citizens, of excluding all who are incapable or unworthy, from stations of responsibility, and placing in them those only whom they esteem most deserving of their respect and confidence. Yet, in practice, it is found, that these two great objects of a democratic form of government, are but partially obtained, owing to the manner in which the people usually exercise their rights in this respect. The reason, why the people so frequently fail of obtaining full success in relation to these objects, will be best exhibited in answers to the two questions, Why are not the best men always chosen? and, Why are not unsuitable men always excluded?

In answer to these questions, it might be thought captious, to remark, that the people are not qualified to determine who are the most suitable candidates for public offices; for, though popular applause, or censure, is no decisive proof either of merit or of the want of it, yet there is usually some foundation for popular opinions. But, supposing the people to possess an unerring judgment of the merits of candidates, they must necessarily be deprived of the benefit of their superior discernment, by a certain course of measures, which frequently is adopted by influential persons, previous to the elections, and by which they attempt to secure the choice of the candidates whom they support.

ElectionIntegrity2Under a government of laws, it is true, that it is a matter of no great consequence, by whom the laws are executed, the sole object of government being to provide that they shall be properly enforced. Among these laws, however, must of course, be included every rule or regulation, adopted for the general defence and protection. Now to the great body of the people, being neither office seekers, nor office holders, and consequently having no other personal interest in the government, than what concerns their own safety, and the regular administration of the laws, it is a matter of no real consequence, whether the government is administered by A. or B., provided only that the public peace, as well as private tranquility, is preserved, and the laws are enacted with wisdom, and executed with prudence. But, in choosing persons for public offices, the people, according to the true theory of a republican form of government, should be guided by the characters of the respective candidates; and should elect those whom they consider to possess the best abilities, and the most industry, fidelity, and integrity. For, in the beau ideal of a republic, there are no parties or factions. Each individual aims at the general good, though not to the total exclusion or neglect of his own private interests. And therefore, though he will not be disinterested enough to sacrifice his private property to the public good; yet, if he is an office seeker or office holder, he will be so true a patriot, as immediately to relinquish his office in favor of some more able aspirant. Patriotism of a higher order than this, will be looked for in vain, in the present generation, any where but in eulogiums, theatrical exhibitions, obituary notices, or anniversary orations; and such as is here described, it is to be feared, will seldom be found, except in Utopia, or the Island of Formosa.

Experience shows, that there are always two or more parties or factions in a community, the well disposed part of each of which, equally seek the best interests of the whole. But, in all such parties or factions, those who make a pretense of the public good to bring about their own private views and selfish purposes, are far more zealous and forward, than those who aim only at the general good. By a show of greater zeal, they expect to be regarded as having a more ardent patriotism ; and among superficial observers, the single-hearted, and the inexperienced, they commonly obtain their aim. And though true patriotism, such as existed among noble and disinterested men of former days, who desired no other reward than an approving conscience, and the applause of such as are able to distinguish and justly value true merit, is a stronger motive than the sordid considerations of profit, office, or station; yet this quality is so infrequent, and office seekers so often assume the mask of it, while playing their parts before the public, that some hypochondriacs and misanthropes deny that there is any such thing as political integrity in any of those, who hold themselves up as candidates for public office. Yet it cannot be doubted, that there really exists such a virtue as disinterested patriotism, and that it may be distinguished from hypocrisy and imposture, by men of information and discernment.

Imagine a young man of good education, availing himself of every opportunity to bring himself before the public, by making speeches at conventions or assemblies of the people, and taking a conspicuous stand in relation to any of those subjects which are made use of by turbulent and ambitious men to. keep the public mind in a state of ferment; that, under a pretext of some crying grievance, whether real or imaginary, he proposes to insult or disturb congress, or the state legislature, by insolent and violent resolutions; that, though he may have outgrown the puerile desire of displaying a talent for declamation, which perhaps has gained him an academical prize, yet has not acquired sense enough to be ashamed to take up two or three hours of the time of a public assembly, in rehearsing those superficial views, those crude speculations, which usually occur to young men at a certain age; but which, for the most part, they have too much diffidence to express in public, until the same advance in years which gives them confidence, brings also juster views, and a more correct estimate of their own abilities; suppose him to have acquired sufficient knowledge of mankind to perceive, that in popular assemblies, the good opinion of the wise, being few in number, is of but little consequence, provided only, that the more numerous body, however giddy, rash, and inconsiderate, is prepossessed in his favor; since the vote of any of the latter has the same weight as that of any of the former; suppose him to be in the constant practice of the arts, by which an ill-disposed multitude are usually governed; that he leads them to such measures as suits his purpose, by exciting their animosity against their political opponents, and inspiring in them a confidence of their impunity, whatever they may do; that he boldly affirms among them that every one, who dissents from him is an aristocrat, and an enemy to the peopled rights; that among the ignorant and profligate, he calls the restraints of justice, religion and good order, priestcraft, superstition, and fanaticism; that he holds out to the selfish, necessitous, and sordid, that they will probably gain an office by joining in his measures; and lastly sets at defiance those persons of integrity, who, he is conscious, discern his true character, and asperses their reputations beforehand, both to disable them from exposing his artifices, and to deter others from opposing his schemes, &tc. &.c. &c. Can any one in his senses ascribe these arts to patriotism? Is there any one, however unprincipled, who will be so mere a simpleton as to support his measures without an expectation of the share of the public spoil; or to lend his influence in raising him to public office, without a hope, perhaps an express promise, of some inferior office in return?

But, how may that true patriotism, which is ready to sacrifice interests merely selfish, for the public good, be distinguished from the counterfeit, which, under pretense of seeking the public good, regards its own exclusively, and to them, however inconsiderably concerned, will sacrifice all other considerations,—the tranquility, the honor, and the safety of the country.

True patriotism comes forward when real dangers threaten the country, takes the lead in personal sacrifices, and risks not only ease, but health and safety, to protect it and insure its welfare. The test of it is self denial, or a disregard of personal interests where the general welfare is concerned.

False patriotism is most conspicuous where there is no real danger. The false patriot magnifies every public grievance, in order that his assistance may be called for to furnish a remedy. In this way he expects to gain power and distinction by instilling a belief that a crisis is at hand, where his superior abilities may be required. Some of the characteristic traits of false patriotism are, speeches and harangues, never ending but to begin again; inflammatory resolutions proposed to the people for adoption; abuse of the privilege of speech and of the freedom of the press, and of the right which the people have to assemble, by convoking them without any necessity or useful occasion. Further; the false patriot makes magnificent pretenses of doing, what the true patriot does without any pretense at all; and it is not unusual to find that the false pretenses of the former, obtain a credit with the multitude which the actual performances of the latter do not always receive. The principal aims of the false patriot are office and emolument; when these are obtained it languishes until there is a danger of a change in the administration, when it revives and proclaims the danger to which the country is exposed.

There is a third class of persons, who make no pretensions to patriotism true or false, but who think it a comfortable way of living to secure a public office, the duties of which are easy, and will afford them greater profit than the same quantity of labor in an independent calling, and at the same lime exempt them from that anxiety, which usually harasses all whose living depends on their own exertions. It is a characteristic of many of this class, that they may easily be brought over to join any party, which, there is a probability, will gain the ascendancy in political affairs, by any reasonable prospect of personal benefit. Such persons seem to be formed by nature, like parasitical plants, to depend and hang upon others, whom they flatter, and by whose course their own conduct is wholly guided. They are the flatterers of men of influence so long as they retain it; but when that influence appears to be on the decline, it is their apparently sincere change of opinion, which frequently gives the greater weight to the opposite scale of the political balance. It is one of the miseries attending popular governments where the people are divided into two parties or factions, that the preponderance of one or the other, should so often depend upon this third class.

That government alone can with propriety be styled free, where the political powers bestowed by it on their rulers, are limited to the necessary emergencies of society; i. e. to its safety and good order; and where the people have a right to select whom they please for their rulers, at periods recurring with sufficient frequency to enable them to remove all those public officers, whose duties are not performed in a satisfactory manner, and to elect others in their room. But though the powers of the rulers, as well as their term of office, are limited, and though the laws of the country may be the most mild and indulgent, still, if the people have not the uncontrolled exercise of their power and right of electing their own rulers, they can hardly be considered as living under a free government; since in that case they do not govern themselves, but are governed by that power, which virtually appoints their rulers by controlling their elections. For, if they cannot remove their rulers from office and elect others in their room, then the rulers will not be accountable to them. Thus, if the members of a state legislature were appointed by a foreign power, however just and equal the laws might be, the people would not live under a free government; because the rulers would be responsible, not to the people who had no hand in their appointment, but to the foreign power which placed them in office. Neither in strictness could the people be considered as free, if a foreign power had the right of nominating the rulers, and the people had merely the right to adopt or reject such nomination; since they must be very much at the mercy of the nominating power. Nor does it make any material difference, whether the nomination is made by a superior foreign power, or, by a domestic superior power; or, is exercised by a species of political legerdemain, by persons in whom no such superiority is acknowledged, in a manner so subtle as to escape observation, though practiced in the presence and before the eyes of the people. For, if the people are deprived of the free exercise of their right of suffrage, the effect is still the same, whether it is done by force or by fraud, by superior power, or by mere juggle. Because, at best, they merely elect those who are nominated for them by others; in which case they are no more free than those, who live under rulers whom others appoint without the ceremony of an election, which in any such case is as humiliating and mortifying, as it is unnecessary and tantalizing. An imaginary case may serve for illustration. Let it be supposed, that in a district where the people are divided into two parties, it has become necessary to elect a public officer ; that a preliminary meeting is thought necessary by the major party in order to select a candidate ; that in this party there is an individual of great political influence, who has usually acted as a leader, who is desirous that some friend or kinsman should be elected to the office; that this individual is a man of fair character, and has an average stock of abilities and acquirements. Under such circumstances, if this influential person has intimated his wishes on the subject, it is next to impossible that they should not be gratified; though there may be twenty individuals in his own party, who are better qualified for the office in every respect. For, this influential person will be consulted on all subjects of importance previous to the election; and, by means of his satellites and dependents, will know precisely at what time, and on what occasion, to bring forward the favored candidate to rehearse a speech before the public. A meeting being then called, agreeably to previous arrangement, and such persons being put upon the nominating committee, as are previously ascertained to be favorable to the candidate’s pretensions, he will of course be nominated by them unanimously, and it is probable the nomination will be received with the apparent approbation of all present. No further step will then be necessary than to insert the doings of the meeting in the next newspaper, with a notice of the nomination, and an account of the promising talents of the candidate, which, however, experiment has shewn, the people think ought not be written by any friend nearer than a brother. His election to office will then follow of course, though each voter of the party to which he belongs, is perfectly satisfied in his own mind, that there are many individuals in every respect Ijetter qualified for the office. They will not oppose the election of this candidate, however, because in every stage of the process, from the first preliminary meeting to the day of election, they feel that they shall be in a minority, if they make nny such attempt; besides, if they vote for any other candidate than the one, nominated for them by the leaders of the parlies to which they belong, they will break up the party, and then their opponents will gain the election; or, at any rate, their votes for persons whom they believe to be better qualified, will be merely thrown away.

To persons, therefore, who belong to parties, there is no other freedom of election, than, either to vote for a candidate nominated for them by the influential men of the party, or, to vote for a candidate nominated by the opposite party, or, to cast their vote for third persons, or, not to vote at all.

To vote for persons nominated by the influential men of a party, in most cases, differs but little from giving those influential persons the power of appointment. The other alternatives need no comment. What then is to be done? The embarrassment lies here, that the people suffer certain influential persons to nominate candidates for them, without being perhaps conscious of it at the time, and suppose that those candidates are the choice of a majority of the party, when it may be, that, with the exception of the leaden of the party, and a few retainers, every individual in the party may prefer other candidates. How does this happen? It happens because the people are deprived ol their power of nomination, and suffer the nomination of the influential men, made through the medium of a nominating committee, to go forth to the public as the voice of the majority of the party, his undoubtedly to considerations of this kind, in part, that the right of suffrage, as at present exercised, has become of little value or estimation among discerning men, who have no desire to lead others, and disdain to be led by them. This is apparent from the little interest, which seems to be taken in elections, demonstrated by the small number of votes given in, when compared with the whole number of qualified voters.

The single remedy for this evil, and which would immediately restore the right of suffrage to its proper value and estimation, is for every voter to throw off the badges of party, which are nothing more than the livery, by which the leaders of parties distinguish their followers from all others. They should also have the virtue and independence, to vote according to the dictates of their consciences, and with a view to the general interest, which is invariably sacrificed by a party to its. own interest, whenever they come into competition. For,- there is no one so simple as to imagine, that a party will not prefer the election of an individual pledged to support them, however incapable and however worthless, to the ablest and most honest man that can be found, who will give no such pledge. What is this but a sacrifice of the general good of the whole in order to further the interests of a part, or rather the private views of the leaders of a faction?

Let the people then throw off the trammels of party, and take care to secure to themselves the exercise of the right of nominating the candidates for public offices. To intrust it to a nominating committee, though apparently chosen by the people is in fact to throw it away ; for, if the committee are to nominate the candidates to be voted for by the people, why not permit them to appoint the rulers at once, and thus save the formality and trouble of an election, when they amount to the same thing in substance?

This evil might be obviated in practice, if the people at a preliminary meeting, held at a convenient time before the days of election, would adopt some such course as the following :— 1. Let them choose a moderator. 2. Let them choose a committee to assort and count votes for that meeting. 3. Let them bring in their votes in writing for candidates for nomination, which being sorted and counted, the most popular candidates would presently appear. 4. If any candidate had more than one half of all the votes, it would be unnecessary to proceed further. But, if there were many candidates, and neither of them had a majority of the whole, let a second ballot take place, to decide between the two candidates having the highest number at the preceding ballot, and casting out all votes given in for any others. The candidate having the highest number at the second balloting, would thus be the candidate nominated by the people or by the party, according to circumstances, and each individual would act without being controlled by the indirect dictation of others. After the vote was declared, those speakers who thought themselves qualified to instruct the people, might profitably employ the rest of the time in useful discourses; but it would be a very useful regulation to consider all rhetorical declamation as out of order, until the regular business of the evening had been transacted; so that no one might feel obliged to remain to hear it.

This course of proceeding would generally be distasteful to the leaders of the party, because their control over the proceedings of the people would be very much lessened, and their influence would be reduced to just what it ought to be, that is, the influence of superior talents, information and integrity, so far as they possessed these qualities. But the influence of intrigue and secret corruption would be almost wholly abolished.

In answer to the second question, why are not unsuitable persons always excluded from office? It may be answered, in relation to those offices, which are filled by popular elections, that the people seldom, if ever, elect a man to an office for which they know him to be unfit: if therefore such an individual is chosen by the people, it must be the result of mistake or misinformation. Party prejudice, it is true, often turns the scale against superior merit, but the people will not, with their eyes open, disgrace themselves by choosing persons known to be dishonest or incapable. The bad policy of such a choice is apparent; because it would take away from the citizens one of the inducements to correct conduct, t. e. the prospect of rising in the public estimation by a uniform course of good behavior, by showing, that the people attach no importance to the good or bad character of the candidates. But in fact, it is for the interest of the people, that all public officers should not only be capable of properly discharging their duties; but should be men of such integrity, that no inducements which can be offered, will be able to induce them, to betray the public confidence. For this purpose, it is absolutely necessary, that the officer’s integrity should be grounded on religious principle, not religious profession merely, for this is a mere counterfeit; nor upon honor, or pride, or reputation, or sense of character; for, all of these last have been found to fail, when exposed to the ordeal of supposed secrecy, impunity, the hope of office, &c. &.c., or, to personal danger or loss of office, &c. &c.

On the other hand, when unsuitable persons are appointed to offices by men in power, it may arise from a great variety of causes. It may be the result of erroneous impressions, made by recommendations given without proper caution or inquiry. It may also be, by way of grateful acknowledgment to the person so appointed, for services, of whatever nature, previously rendered by him to the person appointing. Where the tenure of the office depends upon the pleasure of the person making the appointment, and a man of unsuitable character is appointed, with a knowledge of his character, it may also be, because a person without reputation or principle, is much more obsequious to the commands of his superior, who can remove him at pleasure, and thus deprive him of his temporary standing with the people, and perhaps of his means of support, than a man of religious principles and respectable character, of whom any dishonorable compliance would be vainly required; because, if he were removed, he would be sustained by conscious rectitude, as well as the certainty that his character would support him, whether in or out of office.

This last suggestion, it is believed, furnishes the true reason, why men, well known to be incapable of a proper discharge of duty, are sometimes appointed to office. It is because services are expected of them, of a very different nature from their regular official duties, which they can, and perhaps they alone are known to be willing to perform. . The insufficient discharge of their official duties is therefore winked at.

Notwithstanding the popular theory of a democracy or a republican form of government, therefore, it is quite apparent, that, under the right of electing whom they please for their public rulers, according to the common practice, there is -no insurmountable obstacle to prevent men of bad principles and had character, and very limited talents and acquirements from attaining to the highest public stations. It is equally clear, that the people are deprived of the services of every man of experience and integrity, whose principles will not permit him to unite with any of the parties or factions which, under pretense of zeal for the public good, are constantly disturbing the peace of society, by their contests for power, office and emolument. For, the objects of a party or faction, from its nature must be merely selfish. The first class of leaders seek the highest offices for themselves. The second class, or parasites, endeavor to procure the election of the first, in order that they, the parasites, may be appointed by them, to such offices as the laws place under their control. The rest of the party are merely retainers or followers. The public then lose the services of all honest men, who refuse to join any party. Because no party or faction, will ever elect to office any individual, whose refusal to act under them, is an indirect reflection upon their political conduct.

If, however, the people have the independence and good sense, to secure to themselves the exercise of the right of nominating candidates, in the manner already suggested, no persons, whatever their wealth, standing or office, will be able to exert any improper influence over the voters; the office of parasite will cease, becoming equally ineffectual and contemptible, and the people will become, in fact, what perhaps they now suppose themselves to be, the real constituents of public officers.

But unfortunately for the good of society, it too often happens, that, while the ignorant, incapable, selfish and dishonest unite in the support of a candidate possessing a similar character, from the influence of sympathy, as well as from the envy which they feel towards men of principle and integrity—the honest and well meaning voters, from a belief, that superior merit will undoubtedly receive the preference at popular elections, do not feel the necessity of exerting themselves at all on such occasions. The consequence is, that the less deserving candidate frequently prevails; because in proportion to his want of merit, the more gross, shameless and unprincipled are the measures, which are resorted to, to secure his election.

In connexion with the present subject, it may not be amiss to make a few remarks in relation to the right, which is frequently claimed by the voters of districts, to give particular instructions to their representatives in the legislature.

It can hardly escape the observation of any reflecting person, that there are certain hackneyed propositions, which are continually made use of by public speakers and writers, by whom they are assumed as incontrovertible principles or axioms, behind which it is unnecessary to look, and yet which, on examination, are found to be wholly groundless and futile. These erroneous opinions are continued by the obsequious court which persons, who know better, frequently pay to popular prejudices, for the sake of ingratiating themselves with the people, or, from an apprehension of being denounced by demagogues, if they should attempt to set up any doctrine at variance with such opinions.

One of these is the pretended natural right, which, it is said, the majority in any society have to control the minority, which, when analyzed, is found to be grounded on consent, agreement or arrangement, or otherwise has no better foundation, than the mere brutal right of the strongest. Another of these pretended rights, is that, which the voters in particular districts claim, of giving instructions to their respective representatives in the legislature, which has no rational foundation at all. This is easily demonstrable from the following considerations.

A representative, from whatever part of a state he may be chosen, is the representative of the state, and not the agent of the town or district from which he comes, though as a convenient mode of designating him, he is frequently called the representative from such or such a town or district. It follows, of course, that such town or district has no greater right to instruct him, than any other part of the state. For, the mode of election by districts, is merely a mode of apportioning the representation.

It is not made the duty of a representative to obey any such instructions. It is true, he has a right to consult whom he pleases, and, for the same reason, any one may advise him, who thinks fit. But, as he is chosen on account of his own personal qualities, his talents and experience, it would be absurd to suppose, that he is not at liberty to follow the dictates of his own judgment. On the contrary, the whole community have a right to the exercise of his own understanding, unbiased by the limited and perhaps selfish views of the comparatively small number of his immediate constituents. Further, the exercise of such rights by a majority of such constituents, seems wholly inconsistent with the rights of the minority; because it appears to be the meaning of the social compact, by which the citizens agree to be bound to obey such rulers, as the majority shall choose, that those rulers shall be left to the exercise of their own judgment. For the minority are bound by the compact to obey the rulers, and not to obey the majority; but, if the representatives are bound to obey the instructions of the majority, then the minority become servants to the caprice of the majority.

It is one of the advantages of a legislative assembly, that the members confer together, and, by a comparison of their respective sentiments, and, by an interchange of such intelligence as each possesses, they become better informed, and consequently better able to legislate on all subjects brought before them. But, if a representative is bound to follow the instructions of his immediate constituents, who are but a small body of men in comparison with the whole state, and who have not had the advantage of hearing the subject debated, the public will lose the benefit arising from the discussions of the legislature; indeed, all discussion becomes superfluous, if the representative is bound to act agreeably to the instructions of his constituents.

But, if the representative is bound to follow such instructions, there is an end of all responsibility on his part. He becomes a mere tool or instrument, in whom the possession of knowledge or abilities, is merely a superfluous ornament. All that can be expected of him is, to have sense enough to understand what is required of him, and capacity enough to do it, and the responsibility must rest on those who made him their agent. All this is a violation of common sense.

But, on the supposition, that the representative is bound to obey such instructions of the majority of his constituents, how is this majority to be ascertained? There is no provision in any law, to hold meetings for any such purpose. What sanction or evidence, then, can any self-constituted assembly offer, to induce the representative to receive their resolutions, as the instructions of his constituents? Certainly none, that he is obliged to regard. Such irregular and informal assemblies generally afford conclusive evidence of the intrigue and management of a few influential individuals, and perhaps may be submitted to by an obsequious representative, who may be willing to compromise his personal dignity, rather than incur the risk of losing his office, through the influence which such leaders have over the rest of the constituents, who have less means of information. Such instructions however are always degrading to the representative personally, and consequently must tend to deprive the office both of respect and responsibility. A sure mode of preserving the independence of the representative, would be to lengthen his term of office, and render him ineligible a second time. The fear of losing his office, in that case, would never induce him to submit the exercise of his own judgment to the opinions of the leaders of the party which elected him; and, having no selfish interest to serve, he would be left wholly free from the influence of any other motive, than the conscientious discharge of his official duties according to the best of his ability.

Continued inPART II; CHAPTER II. Of the Liberty of Speech and of the Press.

See the other parts of this series:
RIGHTS OF AMERICAN CITIZENS: General Rights; Division One
RIGHTS OF AMERICAN CITIZENS: General Rights; Division Two
RIGHTS OF AMERICAN CITIZENS: General Rights; The Social Compact
RIGHTS OF AMERICAN CITIZENS: The Powers delegated to the General Government in the Federal Constitution
RIGHTS OF AMERICAN CITIZENS: Powers delegated to the State Governments
RIGHTS OF AMERICAN CITIZENS: The Independence of the States
RIGHTS OF AMERICAN CITIZENS: The rights reserved to the people of the United States
RIGHTS OF AMERICAN CITIZENS: Of the right of suffrage and of elections
RIGHTS OF AMERICAN CITIZENS: The Liberty of Speech and of the Press
RIGHTS OF AMERICAN CITIZENS: The Power of Courts to punish for Contempts
RIGHTS OF AMERICAN CITIZENS: The Law of Libel in relation to Public Officers

RIGHTS OF AMERICAN CITIZENS: The mode of obtaining redress for infringement of civil or political rights

RIGHTS OF AMERICAN CITIZENS: The rights reserved to the people of the United States

Bill of RightsOf the rights reserved to the people of the United States; not being granted either to the general government, or to the state governments.

From: The Rights of an American Citizen: With a Commentary on State Rights, and on the Constitution and Policy of the United States by Benjamin Lynde Oliver published 1832

CHAPTER VI: Of the rights reserved to the people of the United States; not being granted either to the general government, or to the state governments.

In the formation of the federal constitution, it was judged best, on the whole, though there was considerable difference of opinion in relation to the subject, not to introduce into it any bill of rights. The reason for excluding it, was principally, because, it was thought, that if no bill of rights was inserted, all rights and liberties not relinquished to the general government, in the constitution, either in express terms, or by necessary implication, would be considered as retained by the people; while, on the other hand, if a bill of rights were introduced in the constitution, and any right or liberty chanced to be omitted in the enumeration, such right or liberty so omitted, would be considered as relinquished to the general government, by implication. Some of the members of the state conventions, however, and particularly of the Virginia convention, where this subject was thoroughly discussed, were strongly in favor of a bill of rights, and some of the amendments, which were afterwards made to the constitution in consequence of the strenuous efforts of those members, contain in express terms a reservation to the people, of certain rights and liberties, which it would be difficult to show congress had any right to interfere with, independently of such reservation. These rights, however, were very properly reserved to the people in express terms, for the purpose of avoiding, as much as practicable, all doubts in relation to the subject. For the same reason, two clauses were inserted among these amendments, declaring in substance, that powers not delegated by the constitution are retained; and, that a partial enumeration of rights should not be construed to deny or disparage rights not contained in it. In a state of nature, the rights of an individual might be summed up in a single expression, viz, that he had a right to do whatever he had a power given him by nature to do, provided he violated no precept of religion, and was guilty of no wrong to others. But, in the innumerable relations of organized society, though all a man’s rights may be summed up in a manner almost as brief, viz, that he is restrained by no law or duty from doing anything which does not violate any rule of religion or morality, and which does not infringe any of the positive laws or institutions of society; yet, it will be best in order to furnish a more distinct and clear idea of these rights, to take a review of the more important of them separately. For this purpose, since no particular order is observed in the constitution, none needs be observed here.

1. Religious Freedom. Under the first amendment of the constitution, congress is prohibited from ‘making any law respecting an establishment of religion, or prohibiting the free exercise thereof.’ The reason of this prohibition may be traced in part, to the general spirit of toleration, which prevails throughout the United States. It is not a necessary conclusion however, that all the various sects are thus tolerant; but, as the population is divided into a great number of different sects, no single one of which constitutes a majority of the whole, it would be vain for any particular sect, to encourage thoughts of being established as the religion of the whole union. As therefore, there is no probability that any particular sect will ever be able to gain an ascendancy in this country by means of political power; and as unprofitable contests for that object, would create rancorous disputes among those sects, and tend to bring the general cause of Christianity into disesteem with the feeble minded, and give an occasion to the adversary, it has been thought best to provide for a general toleration of religion. The power to make regulations in regard to religion, therefore, must remain in the people of the United States; and though at first sight it might seem, that the citizens of each state might authorize their state rulers to impose religious restraints, yet, as this would interfere with Art. IV, Sect. 2, of the Federal Constitution, it seems that it cannot constitutionally be done.

2. Freedom of speech and of the press. By the same amendment congress is prohibited from passing any law. abridging the freedom of speech or of the press. These two rights are not further noticed here, being made the subject of chapter II, in part II.

3. The right of the citizens to bear arms. The second amendment to the constitution, declares, that ‘the right of the people to keep and bear arms, shall not be infringed.’ The reason assigned in the amendment for this restriction on the power of congress, is sufficient to show its true construction. This reason is, ‘because a well regulated militia is necessary to the security of a free state.’ Certainly, it is impossible to provide any other mode of defence which shall be at the same time so safe so cheap, and so effectual as that of a well organized militia. For, every able bodied man, with the exception of those who are exempted because they are engaged in the discharge of other public duties, is bound to assist in the public defence; and consequently, with the exception of the small number referred to, the number of the whole militia of the United States, is limited only by that of its effective citizens.

The chief excellence of the militia system, is that every citizen at a moment’s warning becomes a soldier; and when the exigency is over, at a moment’s warning retires again to the calm and usual pursuits and occupations of peace. To repel a sudden invasion of a foreign enemy; to put down a domestic insurrection at its first commencement; to protect the country from any attempt to usurp power by persons not confided with it, are occasions, in which the policy of the militia system is very apparent. Another advantage, which however is not quite so obvious, is the assistance which it is always ready to lend the civil arm of the government; in preserving domestic peace and tranquility; in the execution of the process of the law; and in suppressing the tumults and riots and other disorders of the less informed citizens, when under the influence of their own unruly passions, whether excited by some unfortunate occasion, or exasperated by the false reasonings or representations of designing and unprincipled leaders or declaimers. The influence of the militia system in these last cases, is less perceived by the orderly citizens, because it is so much felt by those whose irregularity of conduct can only be restrained by the consciousness of a superior controlling power, which they cannot withstand, and therefore will not attempt to provoke.

Their inefficiency in the field against a regular army, arises from, and is consequently in direct proportion with the following circumstances; viz; want of military skill and experience, in the officers; want of respect for their superiors, and of a spirit of subordination, in the private soldiers. The officers are unable to teach; the privates will not learn. The officers neither know how to command, nor how to enforce obedience. The privates will neither submit nor obey. The whole results in a total disregard of discipline, a want of confidence in their officers, and a distrust of themselves and of each other. These defects however may be remedied by drilling and exercising under officers, who have had an opportunity of seeing service. .

There is but little danger that the militia will betray their country. There may be traitors among them; but having their own interests to protect, and being in reality the country itself, it would be absurd to suppose that they would ever betray themselves. It is true, that they may ruin themselves by acting under erroneous views of their own interests. But this is incident to human nature.

4. The quartering of soldiers. It is provided in the third amendment of the constitution, that ‘no soldier shall in time of peace be quartered in any house, without the consent of the owner; nor, in time of war but in a manner to be prescribed by law.’ This provision is important to the comfort of the citizens. When soldiers are quartered on the inhabitants of a place without their consent, it gives rise to many abuses and impositions on the part of the soldiers, and a great deal of ill will on the part of the citizens. To live at free quarters, is little else than making booty and pillage of every thing, at discretion. In a state of war, the exigencies of military service may frequently require that soldiers may be quartered on the inhabitants. To leave the regulation of this matter to the discretion of the commander in chief of an army, would be to subject the persons and property of the citizens to the risk of outrage, insult and violence, without any other means of redress than such as depend on his arbitrary will. The citizens have prudently guarded themselves as far as practicable, by requiring that this subject shall be regulated by law.

5. Under the 4th amendment, the persons, houses, papers and effects of the people are secured from unreasonable arrests, seizures and searches. No warrants therefore shall issue but upon probable cause supported by oath, etc. By these provisions all general warrants, for searching or seizing persons, property, or papers, without particularly describing the object of such process, are made unconstitutional. The propriety of securing the liberties of the citizens in these respects, is manifest from the arbitrary and tyrannical use of general warrants which has frequently been resorted to in Great Britain.

6. The 5th amendment declares, that no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment by a grand jury, &c. etc. One of the principal objects of this provision, was to exempt persons who belong neither to the army or navy of the United States from trials by a court martial, or other tribunals not known to the common law, which might be erected by the legislature. It furnishes an important barrier or safeguard, on the part of the people, against any acts of violence, imposition or oppression which may be practiced upon them in war or peace, by military commanders, either by direct outrage, or by subjecting them to summary trials and convictions before officers under their command, and consequently more or less under their influence, by the most odious and least to be depended upon of all trials, that by court martial. This however will prove inadequate to protect individuals, whenever the people become so infatuated as to connive at acts of arbitrary power in popular leaders. For, such leaders, depending on the weakness or sottishness of the multitude to overlook, perhaps to applaud, all acts of tyranny or oppression committed on individuals, so long as a pretence is held out, that they are done for the public good, without considering that no individual can be oppressed without at the same time threatening the liberty and safety of all, will be very much inclined to trample on any obstacles which may stand in the way of their ambition, however the rights t)f others may be sacrificed in consequence. But, if the people have the good sense to consider, that the greater the power of the offender, the more necessity there must always be to bring him to justice; and that no public services whatever are a sufficient warrant for the violation of the laws of the country and the rights and liberties of the citizens, and sustain the decisions of the tribunals of justice in assertion of those rights by an open avowal of such sentiments, there will never be any danger of a loss of freedom from any such usurpation of unconstitutional power.

7. The same amendment provides, that no man shall be compelled to give evidence against himself. This provision forbids the enactment of laws, which shall authorize the infliction of torture, imprisonment, or any other means of coercion, in order to compel an accused person to confess his guilt, and is in perfect accordance with the principles of the common law, which excludes, as incompetent, all evidence of confessions, extorted either by threats or promises of favor made by persons acting judicially, or officially.

8. The same amendment provides, that ‘no person shall be deprived of life, liberty or property without due process of law, &c. Sic. This clause seems not to be aimed so much at the tyrannical conduct of persons in power, acting under an usurped authority, as to prevent congress or the legislatures of the states from intrusting a power over the lives or the liberties of the citizens to public officers in command, and from confiscating the estates of individuals without the formality of trial, by mere unprincipled acts of legislation. Bills of attainder are prohibited in the constitution, in Section ix, Article 1. Even this prohibition, it seems, is not wholly superfluous. Before the adoption of the constitution, a man by the name of Phillips was attainted by a bill of the legislature of Virginia, and was executed under it.

9. Under amendment sixth, the accused shall enjoy the right to a speedy and public trial, &c. &c. These just and humane provisions, are made to prevent the possibility of unfairness or oppression, from being practised upon the humblest or most obnoxious individual in society. An accused person cannot now be detained in prison, as otherwise he might be, from year to year, at the discretion of the court or the public prosecutor, but has a right to demand a trial at the regular time, and cannot justly or constitutionally be deprived of it, or delayed without sufficient cause. If there is no substantial reason for delay, he must either be tried or discharged without trial. If any other rule were adopted, he might be kept in perpetual imprisonment, under one pretence or other. The absence of material witnesses on the part of the prosecutor, is not of itself a sufficient cause for putting off the trial, unless it appears also, that the public prosecutor has made every reasonable exertion to procure their attendance, and that he will probably be able to do so at the next regular term. Neither will it be a sufficient cause for delay even then, if the prisoner is willing to admit that the absent witness will testify in the manner the prosecutor states in his affidavit he expects him to testify; or, if the person accused can produce the record of the conviction of such absent person, of any crime that renders his testimony inadmissible in a court of justice. Neither ought the indisposition of the public prosecutor, to be considered as a sufficient reason for putting off a trial, where the accused party is suffering imprisonment in the mean time. The liberty of the citizen ought not to depend one moment on the health of the public prosecutor. If any of the jurymen are not impartial, &c., if they have any personal interest in the result of the trial; if they have expressed a decided opinion as to the guilt or innocence of the prisoner, they ought to be taken from the jury either on the challenge of the prisoner, or that of the public prosecutor, or, on the challenge of the juror himself; in order that justice may be done to the public as well as to the accused party.

The prisoner must also be tried in the district where the crime is charged to have been committed. This is provided, in order that he may not be liable to be oppressed by being taken away among strangers, who, not being acquainted with his previous character, would derive their first impressions with regard to it, from the nature of the accusation itself.

It may not be amiss here, to suggest, that an innocent person accused of a crime, should be very cautious in the voluntary relinquishment of any formality, which the law require to be complied with in criminal trials. All those formalities are directed for the purpose of protecting innocence from the possibility of an unjust conviction. They are all grounded on some sufficient reason, though that reason may not always appear, or may not be applicable to every case. They ought not to be so numerous or so hard to be complied with, as to prevent the conviction of guilt itself, it is true, but they cannot be liable to this exception, since notwithstanding the strict observance of them, the innocent sometimes are convicted.

The case is easily conceivable, that a person perfectly innocent, may, from the force of concurring circumstances publicly known, be generally believed to be guilty of the crime of which he is accused; and the court as well as the jury and the witnesses, may be so satisfied of it, and of j the plenary proof which it is expected to adduce against him, that the unfortunate individual may be considered as virtually condemned in the minds of all, even before the trial is commenced. It is here that the wisdom and humanity of these requirements and technical formalities are most manifest. For, if they are strictly observed, the court and jury, however strong their prepossessions may possibly be against the prisoner, if they pay ordinary attention to the proceedings, will not fail to perceive whether there is or is not sufficient legal evidence of the prisoner’s guilt, and then if he is really innocent, he can never be convicted except from one of those errors or mistakes, which it is incident to the imperfection of human nature sometimes to commit.

The prisoner must be acquainted with the precise nature of the accusation, so that he may know what to defend. This notice must be given him seasonably, so that he may have a reasonable time to prepare for his defence, and procure the attendance of his witnesses. This he is entitled to process, to compel, and of this right congress cannot constitutionally deprive a prisoner. He is also entitled to the assistance of counsel in all criminal cases. In capital ones, if the prisoner is unable to retain counsel at his own charge, it is the humane and invariable practice of the court to assign him such as he requests, and to the honor of the legal profession, it is due to remark, that the task is seldom if ever declined without sufficient reason, and when undertaken is discharged with a disinterested zeal and ardor, which always secures to the prisoner a fair trial; though it has sometimes overshot the mark and defeated the purposes of justice, by procuring the acquittal of undoubted guilt, contrary to both law and testimony.

10. The eighth amendment provides, that excessive bail shall not be required. This is supposed to be intended to prevent the requiring of excessive or unreasonable bail, in cases of bailable criminal charges only. There is however no reason, why it may not extend to cases, where the defendant in a civil action, is held to bail for an unreasonable amount for the purpose of oppression. It seems however to be a direction for magistrates, and not either for the legislature or for sheriffs, &tc. Where a prisoner charged with a bailable offence, is brought before a court or magistrate having authority to hold him to bail, or to let him go upon his giving bail, by what rule is he to be guided in settling the amount to be required, agreeably to the spirit of the constitution? The design of bail is either to relieve a prisoner in custody for a bailable offence, from imprisonment, upon his giving sufficient caution or security for his appearance at court, at the proper time to take his trial; or, it is to compel a person at large to give such security, under the alternative of being committed to prison till his trial comes on. To relieve from imprisonment and to secure the appearance of the accused, are therefore the two objects, which the magistrate is to have in view; but, where both cannot be obtained, the former must yield to the latter. The magistrate here has a right to use a proper discretion. It is obvious, if the person accused, being released on bail, sees fit to abscond, his recognizance will be forfeited, and his bail be held responsible for the amount. If therefore, previously to his going off, he should deposit a sum of money with his bail, sufficient to indemnify them against the forfeiture of the recognizance or bail bond, the purpose of justice will be eluded, so long as he keeps himself out of the jurisdiction of the court, and yet the bail will be held harmless. Where the crime charged therefore is of an odious or infamous nature, and the evidence strong, and the person accused is rich, or has opulent parents or influential friends, the highest bonds should always be required. So, if he is a transient person, high bail should be required; otherwise he may deposit a sufficient sum of money with some one to induce him to procure bail for him, and then abscond. But, where the crime is not of an infamous nature, where the evidence is slight, and yet not sufficiently so to warrant the discharge of the person accused; if he is poor, he. &tc. the lightest bonds should be required.

The eighth amendment also prohibits excessive fines. This is a direction to the legislatures as well as to the courts and to magistrates. If therefore a law should be passed, imposing a ruinous fine upon an inconsiderable offence, or otherwise wholly disproportioned to the magnitude of it, it would be inconsistent with the spirit of this amendment. So, where a crime is punishable by fine and imprisonment, at the discretion of the judge, this discretion is a reasonable discretion, i. e. the best exercise of his honest judgment, and must not be confounded either with whim, caprice, or vindictive feelings. A man’s farm or stock in trade, ought never to be made a sacrifice, to the ruin of himself and the distress of his family, but, if necessary to make an example, he should rather be imprisoned for a longer period, and a more moderate fine be imposed. For similar reasons, if a law should be passed, requiring a specified and very heavy fine to be imposed in all cases of crimes of any particular class, and allowing the judge no discretion, though the offence in some cases might be very slight, it cannot be doubted that such a law would be contrary to the spirit of the constitution.

No express restriction is laid in the constitution, upon the power of imprisoning for crimes. But, as it is forbidden to demand unreasonable bail, which merely exposes the individual concerned, to imprisonment in case he cannot procure it; as it is forbidden to impose unreasonable fines, on account of the difficulty the person fined would have of paying them, the default of which would be punished by imprisonment only, it would seem, that imprisonment for an unreasonable length of time, is also contrary to the spirit of the constitution. Thus in cases where the courts have a discretionary power to fine and imprison, shall it be supposed, that the power to fine is restrained, but the power to imprison is wholly unrestricted by it? In the absence of all express regulations on the subject, it would surely be absurd to imprison an individual for a term of years, for some inconsiderable offence, and consequently it would seem, that a law imposing so severe a punishment must be contrary to the intention of the framers of the constitution.

Under the same amendment the infliction of cruel and unusual punishments, is also prohibited. The various barbarous and cruel punishments inflicted under the laws of some other countries, and which profess not to be behind the most enlightened nations on earth in civilization and refinement, furnish sufficient reasons for this express prohibition. Breaking on the wheel, flaying alive, rending asunder with horses, various species of horrible tortures inflicted in the inquisition, maiming, mutilating and scourging to death, are wholly alien to the spirit of our humane general constitution. Yet the statute books of some of the states, are disgraced by laws justly chargeable with barbarity. Is not whipping a punishment sufficiently severe of itself, when required to be inflicted on the naked back, without the savage direction that, the stripes should be ‘well laid on?’ Is not the punishment of death sufficient? Must the atrocious spirit of revenge be gratified, by having the culprit burned alive?

11. In the fifth amendment will be found a prohibition to take private property for public use, without just compensation. It would seem no more than justice in any such case, to estimate the property taken, at its fair value at that time, with the usual rate of interest on that amount, until the time of paying for it; this being the nearest approximation that can be made, to the actual detriment which the owner has sustained. Where the legislature do any act of this kind, it cannot of itself constitutionally determine the amount of compensation. See 2 Dal. 304.

There are some other rights, which are reserved to the people, though not mentioned in the general constitution. Among these is the right of self-defence, in cases where the danger is so imminent, that the person in jeopardy, may suffer irreparable injury, if he waits for the protection of the laws. It is true, if he survives, the justice of society will afford him such separation as its own power permits; but he is not bound to submit to this alternative; and as the compact between him and society is mutual, if society is unable to protect him, his natural right revives to protect himself. See ante, p. 40.

Another right, reserved to the people though not mentioned in the constitution, is that of expatriation. Every citizen who has not entered into an express compact with the government by swearing allegiance, may leave the country and dissolve all ties with it but those of gratitude and affection, at pleasure. This right is acknowledged indirectly by the constitution; for otherwise, it would not have established a rule of naturalization, by which aliens who desert their native country, may become citizens and patriots here. See ante, p. 43.

The people also according to the democratic theory, have a right to alter their constitution and frame of government, as they please, if unanimous. This right is inalienable; no express stipulation can deprive them of it. It is true, that a mode of amending the constitution is pointed out in it: but, as this mode of amendment is only agreed upon by the people of the United States, as a safe and convenient one; the same authority, if substantially unanimous, may abolish the whole constitution and the mode of amendment, and adopt whatever form of government they see fit. This however is the right of revolutionizing, which however it may be viewed in the abstract, if taken in connexion with its concomitant circumstances and attendant consequences, viz. the unsettled state of all laws and institutions; the base and profligate practices of ambitious men to mislead the people; the insecurity of property—of life itself, and the extreme improbability, that a people who have been so foolish as to abolish a tolerable government, on account of some theoretical defects, will have sufficient wisdom to adopt a better, should cause a case, where such right may be exercised with propriety, to be regarded as potentia remotissima, [potential most removed] an incredible supposition. See ante, p. 55.

An important right, and one which is expressly reserved to the people, in the constitution, is that of assembling peaceably.

This is one of the strongest safeguards, against any usurpation or tyrannical abuse of power, so long as the people collectively have sufficient discernment to perceive what is best for the public interest, and individually have independence enough, to express an opinion in opposition to a popular but designing leader. But, if they are ignorant or misinformed in this respect, the exercise of this right will be pernicious, if their rulers are governed by any expression of the sentiments of such of them as see fit to exercise it; and will be useless, if they are not at all influenced by it.

This right includes not only a right to assemble in order to petition for a removal of grievances, but also a right to assemble for the purpose of deliberating upon public measures. For, it cannot be supposed that they have a right to assemble for the purpose of petitioning only, when a short consultation may perhaps be sufficient to convince them, either that their is no grievance at all; or, that it is unavoidable; or, that it will remedy itself; &,c. &,c. any of which will be sufficient to satisfy the people, that an application to congress on the subject, would be superfluous or useless.

The proper occasion for the exercise of this right would seem to be, where a law has a different operation from what congress intends, and is oppressive in any respect, either to the people in general; or, to any particular class of them; or, to the inhabitants of any particular state, district, territory, or section of the country. In any such, case, those persons who suffer the inconvenience or grievance, may well send a petition or remonstrance to congress on the subject. But then it should be subscribed by those only who belong to the suffering class or district. For, the object of it must be to show to congress the true state of the case, and in this way to let congress perceive the impolicy of the law and the necessity of its repeal. But, if signed by petitioners or remonstrants, who have no interest in it, and who know nothing about its consequences from personal experience, it will be a mere attempt to impose upon congress. For, it is not the mere opinions.of those who suffer no grievance, which are wanted, nor theories, however ingenious, but the results of experience.

For the same reason, when different classes of citizens suffer different grievances from a particular public measure, each class should remonstrate separately, and state only the real grievances which it suffers, itself, without noticing those which it supposes other classes to suffer. For, of these, those other classes are the best judges, who can petition for themselves if they think it expedient. Nether should their petitions or remonstrances be filled with lectures or disquisitions on speculative points in political economy; for, though such disquisitions may serve the purposes of making an ostentatious display of the talents or eloquence of the persons employed by the remonstrants to frame their representation or petition; in any other view, they are useless and impertinent, as it is to be presumed, that the greater number of the members of congress are acquainted with the elements of that science, and are capable of applying those elements for themselves. If remonstrances or petitions were drafted subject to these restrictions, and contained those grievances only which the petitioners really felt, it cannot be doubted that they might be of service to the public interest; because they would then give congress information which might be depended on, as to the operation of their laws, and congress might thus know the result of experience in regard to public measures, which they might previously have adopted with no better light, than such as they had borrowed from theory or analogy.

But such petitions or remonstrances should be carefully distinguished from one, which owes its origin to individuals, whose interests are concerned to procure the enactment or repeal of some particular law. For, these persons, if they happen to possess any considerable standing among the people, may very easily create a faction, by keeping their own private interests out of sight, and, at the same time calling assemblies and making great pretences of regard for the public interest, which they affect to consider to be deeply concerned. Such an occasion is greedily seized by aspiring young men to bring themselves into notice, and, if none are invited to attend the meeting as is frequently the case, but those who are ‘favorable’ to the object of it, it is very probable that every ‘patriotic’ and ‘spirited ‘ resolution will be adopted ‘ unanimously’ and that many thoughtless spectators, who attend the meeting for the mere purpose of entertainment, from hearing a descant on one side of the subject only, will be brought to believe, almost any thing which the orators and leaders see fit to assert. In this way, a few selfish individuals, if possessing, singly, only a small share of influence in society, by uniting together, and then drawing in others, who are so simple as to believe, that they have no other aim than the public good, may set on foot a faction, which may endanger the tranquility of the whole Union.

A petition or remonstrance, deriving its origin from such a source, it is obvious, can be of no service to congress while legislating for the general interest of the community; but, on the contrary, is a gross abuse.

Again: Suppose a law to be already enacted, which certain persons think will be detrimental to their interests; still, if no detriment has already followed, the time to remonstrate has not arrived. Because, they ought to take for granted, that congress has weighed the matter and its consequences deliberately, before passing the law.

When a grievance has actually taken place, it would be very proper for the persons injured, to send a remonstrance, or petition, stating facts, to congress, with a request that they might have an opportunity to verify them by testimony. Such an opportunity, it would be very proper to afford the remonstrants; but all argumentative matter should be regarded as superfluous. For, it is the business of the representatives and senators, to argue the question of general expediency, especially those, who come from the neighborhood where the remonstrants reside, or who are elected by them. But, if such senators or representatives dissent from them, and express themselves accordingly in the senate or house, the remonstrants have the regular course of redress, of choosing others. If however they cannot succeed in the attempt on account of the preponderance of another class of interests, congress will perceive at last, that the remonstrance is nothing more than the expression of a wish on the part of a minority, that their interests should supersede those of the majority; it being presumed, however, that congress is acting constitutionally.

When grievances, which are stated in a remonstrance, are verified by testimony, it is to be presumed, that congress will provide a remedy for them, if it can be done without making a sacrifice of interests, which are of more importance.

Where a grievance affects a particular class of men only, it is absurd for those to subscribe the petition or remonstrance, who do not belong to the class; or, if they do, are not sufferers by it. For example, if the grievance affects booksellers alone, it is absurd for blacksmiths, tailors, shoemakers, &tc.&tc. to subscribe the petition; because they must know that their interests are not affected, and if they subscribe it, it will be an attempt to practice a species of imposition on congress. It is on this account, that every one who subscribes a petition to congress, ought to add his trade or occupation, and if he does not, the name should be struck off.

In this way, the greater the number of remonstrants, the greater also would be the weight of the remonstrance, because it would then appear that each of them personally, felt a share of the grievance, which it was the object of the remonstrance to remove.

But, if the remonstrance is merely filled with abstractions, and plausible speculations, and ‘eloquent,’ ‘ spirited’ and ‘ patriotic,’ declamation, and subscribed by persons who do not mention their particular occupations, &c. it is odds that there is no real public grievance; but the whole probably is a scheme to overawe congress, concerted by a few influential persons, who have some private ends in view, and have drawn in the simple and unwary to subscribe what they know nothing about, and have no interest in, unless in fact it is one adverse to the remonstrance.

An attempt of this kind, however, would seldom be attended with much success, if both houses of congress always had the necessary firmness and steadiness. But, in popular governments, where men are elected to office because they are popular, the principles of those of them, whose popularity has little better foundation than watching the vane of public opinion, will seldom hold out long against a turbulent and insolent expression of the will of those, who are supposed to be the people, but, who, in fact, are merely the restless, dissatisfied, ambitious and grasping part of them.

Where any public measure is adopted by congress, which any class of citizens, or portion or district of the country considers oppressive, the first question to be settled is, whether it is constitutional or not. This the supreme court of the United States is the only constitutional tribunal, having jurisdiction to determine. The mere opinions of the majority of any convention of individuals, assembled by their own authority only, are entitled to no weight or consideration in congress. For, they are not the constitutional advisers of congress. They are not recognized as acting in any official capacity, nor have they any jurisdiction as a court. It will be sufficient therefore, for such assemblies to deliver their opinions to congress, when asked. But, if congress give them any weight, they wrong those quiet citizens, who stay at home and confine their ingenuity to the management of their own affairs, confiding, that no other class of citizens will have any greater share of public influence than themselves; but who, if they find that there is any advantage to be gained by forming conventions, and sending remonstrances to congress, will soon learn the lesson.

The next question is whether such measure is expedient? This congress is exclusively to decide. Here too, the opinions of any conventions not legally called under the authority of the United States, or of any of the states, are entitled to no weight. For, if congress is to be governed by any such opinions, the convention with which they originate, in effect becomes the congress, and congress is thus deprived of the exercise of its own power and discretion. But in fact, a remonstrance so indecorous as to express opinions to congress, and point out the path in which it ought to tread, should be lightly regarded. Further; if it comes from a majority of the people who belong to a class or district, whose interests are supposed to be peculiarly concerned, but who are in the minority in congress, it reflects great disgrace upon their representatives, as if they were unable to manage the affairs intrusted to them. Would it not be better then to send abler ones? On the other hand, if such representatives have faithfully discharged their duty to their constituents in this respect, and still are unable to convince congress, is it not apparent that the weight of reason in the minds of a majority of the members, is unfavorable to their view of the subject?

The choosing of delegates from different states in the union, to form a convention, with a view to induce congress to adopt any public measure, is a still greater abuse of the right of assembling, reserved to the people in the constitution. The organization of any such body of men, by choosing a president and secretary, he. and any high-toned resolves, &.c. which they might adopt, would tend to excite mistrust, suspicion and alarm. What would they have? For, either they are the majority, in which case their conduct is absurd; because, they may remove from office those representatives who do not act agreeably to their wishes; or, they are the minority, in which case by organizing themselves, they expect to gain some advantage of influence, which will turn the scale in their favor against the will of a majority of the people. But how is this to be done? Do they mean to extort from congress the adoption of any public measure, which to the minds of the members does not seem expedient? Do they mean to overawe by their boldness, the representatives of the people whom they are unable to convince by their arguments, when urged by their constitutional representatives in congress? But, if the members of congress, under the influence of some undefinable apprehension, should comply with the wishes of such convention, and adopt any measure not approved of by the majority of the people, they would at once violate their own consciences, and commit a breach of trust against their constituents, . If such convention should send an address to congress, containing argumentative matter to induce congress to come into their views, it would be equally impertinent and improperly directed. Such addresses ought to be made to the people. Let the people be once set right in their opinions, and there is no fear but that proper legislation will soon follow.

It is matter of regret, that individuals of respectability should ever be forward to take an active part in proceedings of this kind, which if coolly considered are certainly unwarrantable and inexpedient, because they tend to lessen the confidence of the people in their constitutional rulers. Is not the government democratic enough already? But must its deliberations be annoyed by addresses or lucubrations from conventions, originating in any thing but what they profess to originate in; perhaps the disappointed ambition of an unsuccessful candidate for office, who has no other way to attract notice, or to gain political influence and importance; perhaps in sordid interest acting through the medium of patriotism and under pretense of a disinterested regard for the welfare and prosperity of the country. Certainly such abilities might be more profitably employed in flashing imaginary powder in the daily journals, or garnishing the dull prosings of a periodical review.

It is true, there is no reason to apprehend, that men of respectability, will personally do any thing wrong. But they seem not to consider, that many rash and inconsiderate persons, seeing how far men of character are willing to venture, and having a desire to attract observation by proceeding to extremities, will not hesitate to attempt measures, that never would have been contemplated by men of sense and principle, and which these rash men would never have thought of themselves, but for the encouragement which they had received from the previous countenance and co-operation of their betters. For, it is a common misfortune, to which intelligent, influential, and wise men are exposed, who associate in any enterprise, with the rash, ignorant, or profligate, if wisdom were not excluded by the very fact, that they are always held responsible for, and usually considered the authors of every act and measure adopted by such attendants, followers or companions, however outrageous and absurd in its intentions and consequences, and although such acts or measures may have been adopted not only without the concurrence, but against the express will of such men of intelligence. Why do not these latter ask themselves then, whether it is right to call conventions of the people, and declare to (hem, that the execution of unconstitutional measures may be resisted by force; and then express to them an. opinion, that some particular public measure is unconstitutional, when the constitution has provided a regular and unexceptionable tribunal for the final decision of all such questions, and the jurisdiction of that tribunal has been formally and expressly acknowledged by all the states, by the act of adopting the constitution? For, what can naturally be expected to follow next, but the raising of armies, the secession of one or more of the states from the union, and the other consequences which usually attend insurrections and revolutions; viz. civil war and foreign alliances, and the subjugation of part of the country, either to the rest, or to strangers? Is it possible, that men of discernment and fair intentions, can be willing to hazard such consequences on matters of speculation, or where the question of right and expediency is uncertain at best, on an opinion which the majority of the people think erroneous, and which opinion is therefore so far to be presumed correct? What judgment must then be formed of those men of influence in society, who, under whatever pretext of patriotism,— under whatever show of disinterestedness, have caused an exasperation and excitement in the minds of the people, which possibly may only terminate in the dissolution of the union, and the deluging of their country with the blood of its citizens?

In some cases, however, the exercise of the right of assembling to discuss public measures, is of advantage to the people, if there are no extensive combinations formed among them for the purpose of effecting some particular object, regardless whether the measures are right or wrong. Because they have an opportunity, which is sometimes improved, of receiving useful information, from the oral communications of men of learning and experience. But, for the most part when such assemblies are called on the most unexceptionable business, they serve chiefly as occasions for haranguing the people, and exciting their passions by loud and florid declamation, delivered with the regulated and precise gesture of the academy, and with all the generous and glowing ardor of holiday patriotism. This however is a great improvement on the affrays, tumults, riots and public disturbances, which in many countries invariably attend numerous and irregular assemblies of the people. For, in this country, it is generally found, that on such occasions, the people who are assembled, instead of disgracing themselves by tearing down gaols [jails], or other public buildings, and forming turbulent mobs, having been gratified by prolix and complimentary addresses, on their patriotism, intelligence, morality, &c. &c. become comparatively mild and good humored, and vent their spleen or independence, in patriotic, spirited and vain-glorious resolves. The meeting is then dissolved; the citizens retire filled with self-applause, and glory, and deafened and wearied; the orators are complimented in the next newspaper, in which the respectability and number of those who attended the meeting, are greatly exaggerated, and the whole subsides in an unruffled calm.

In connexion with this subject, it may not be amiss to make a few observations upon the restrictions, which the constitution of the United States imposes upon the powers of the states. These restrictions may be found in Article I, Sec. 10. It has been mentioned already, ante p. 158, that no state, under the constitution, has any right ‘to enter into any [treaty, alliance or confederation,’ &c. This prohibition extends as well to an alliance, &c. with another of the United States, as to one with a foreign state. If alliances were formed between two or more states to which the rest were not parties, it would not only lead to jealousies and animosities between the confederate and preferred states, but would be wholly inconsistent with that clause in the constitution, which declares, ‘that the citizens of each state, shall be entitled to all privileges and immunities of citizens in the several states.’ On the other hand, if the several states were at liberty to form alliances, &c. with foreign powers, it would introduce foreign influence into the Union, and would supplant the predominant interest which each state is supposed to take in the general welfare of the United States, by a greater interest in the affairs of some ally, by which it might be protected at any time, if it saw fit to oppose itself to the measures of the United States.1

By the same section, ‘no state shall grant letters of marque and reprisal.’ The reason of this prohibition is, that this grant is an exercise of sovereign power, which the states do not possess. Congress alone has the power of declaring war. But if any state might grant letters of marque and reprisal, it would have the power of involving the country in a foreign war at any moment.

The States are also prohibited from coining money. This also is a sovereign power, and confided to congress alone, by the constitution of the United States. If each state had the power of coining money, it would be impossible to keep the specie currency of the Union, of the same standard, which would be a great embarrassment to commercial intercourse, and a source of various frauds. It is, without doubt, a great disadvantage to all fair dealers, in domestic manufactures, that there is not a national standard for gold and silver plate, established by law in this country, as it is in others.

No state can constitutionally emit bills of credit, or make any thing but gold and silver a lawful tender in payment of debts. There is no legal process by which a state can be compelled to redeem its bills; there is great danger, therefore, if any were issued, that they would soon depreciate; this, as is usual in such cases, would give rise to many frauds and inconveniences upon the unfortunate holders.

No state can constitutionally pass any bill of attainder. No country can be considered free, and consequently no citizen can ever be safe, where the legislature is permitted to exercise the iniquitous power of declaring a man guilty of a crime, and putting him to death without a lawful trial. The same reason will extend in a proportionate degree to the enactment of ex post facto laws generally, which the states are prohibited from passing by the constitution. This prohibition, however, extends to penal statutes only. See 3 Dal. 386.

And therefore every law which makes an action done before the framing of the law, and which was innocent when done, criminal, and punishes such action, is an expost facto law, and consequently unconstitutional. So, if it aggravates a crime, or makes it greater than it was when committed. So, if it changes the punishment, and inflicts a greater punishment than the law annexed to the crime when it was committed. So, if it alters the legal rules of evidence, and receives any testimony less than, or different from, what the law required when the offence was committed. See ibid.

No state can constitutionally pass a law, which impairs the obligation of contracts. Any law will we considered as impairing the obligation of a contract, which substitutes a mode of performance different in any respect, from what was agreed upon between the parties. As, if it authorized the discharge of the contract by a smaller sum than the contract contains; or, if it substitutes a different time when it is to be paid, or, introduces any new conditions, or dispenses with any. It is apparent, that any such substitution is virtually a cancelling of the original contract which the parties have made, and making another for them. This can never be done without their consent. See 8 Wheat. 1. 3 Wash. 313. See 1 Gal. 338. 12 Wheat. 370. See 4 Wheat. 518, 122. See also the case of the Yazoo lands, 6 Cranch. 87.

(I apologize, the last page of this chapter is damaged, it speaks some more about the constitution and a standing army and the citizen soldier, I will add this last paragraph when I can find it elsewhere)

The states are also forbidden to keep on foot any armed force in time of peace, without the consent of congress. This also is a sovereign power, which expediency requires should be exercised by the United States alone. For, if one state keeps a standing army of disciplined troops, the other state will sooner or later be compelled to do the same, the ultimate tendency of which, it is not difficult to perceive. The intention of the framers of the constitution, without doubt, was to avoid all occasions, not only of actual collision between the states, but also of jealousies and distrusts. Nor did it escape their observation, that a state prepared with a standing army, would be much less likely to yield a ready obedience to the laws of the United States, than one having nothing to rely upon, in case of resistance, but the transient and undisciplined ardor of citizen soldiers.

CHAPTER I. Of the right of suffrage and of elections.

See the other parts of this series:
RIGHTS OF AMERICAN CITIZENS: General Rights; Division One
RIGHTS OF AMERICAN CITIZENS: General Rights; Division Two
RIGHTS OF AMERICAN CITIZENS: General Rights; The Social Compact
RIGHTS OF AMERICAN CITIZENS: The Powers delegated to the General Government in the Federal Constitution
RIGHTS OF AMERICAN CITIZENS: Powers delegated to the State Governments
RIGHTS OF AMERICAN CITIZENS: The Independence of the States
RIGHTS OF AMERICAN CITIZENS: The rights reserved to the people of the United States
RIGHTS OF AMERICAN CITIZENS: Of the right of suffrage and of elections
RIGHTS OF AMERICAN CITIZENS: The Liberty of Speech and of the Press
RIGHTS OF AMERICAN CITIZENS: The Power of Courts to punish for Contempts
RIGHTS OF AMERICAN CITIZENS: The Law of Libel in relation to Public Officers

RIGHTS OF AMERICAN CITIZENS: The mode of obtaining redress for infringement of civil or political rights

RIGHTS OF AMERICAN CITIZENS: The Independence of the States

StateFlags2The Rights of an American Citizen: With a Commentary on State Rights, and on the Constitution and Policy of the United States by Benjamin Lynde Oliver published 1832


Of the Independence of the States and the Sovereignty of the Union considered together, and how far the latter is consistent with the former.


To form just and adequate ideas on the subject of the present chapter, it may not be amiss to consider shortly, what would be the condition of the several states, if the Union among them were peaceably dissolved, and, with that single exception, every thing else were left in the same situation that it now is. The people of each state, it is apparent, would then find themselves in possession of a distinct territory, with a separate regularly organized government, fully authorized by the people for the regulation of its concerns; and though perhaps not invested with any power to wage a foreign or offensive war; yet having full authority to resist invasions from without, and to suppress tumults and insurrections within; and generally to provide for the public peace and the domestic tranquility of its citizens, and the support and maintenance of the government. Under such circumstances as these, and acknowledging no earthly superior in any other government or tribunal whatever, it is impossible not to perceive, that each state would be completely sovereign and independent. It was in this condition, that those states of the American Union claimed to be, which agreed to the articles of confederation; and, with the exception of that compact, this was the situation those states were in, which first agreed to adopt the federal constitution.

It is thus apparent, that the constitution of the United States is the only restraint, which the several states have imposed upon their own independence. It is also the only bond that unites them under one government. A proper regard for their own interests, it is true, would tend to keep them at peace with each other, and might also induce them to form alliances for mutual protection against external aggression. But such consequences would greatly fall short of the advantages, to be derived from a union, under a constitution like that of the United States. For, the general government, being invested by it with all the powers of peace and war, and with the control also of the whole resources of all the states, without being under any necessity of consulting the local authorities, in these respects has all the consistency and strength of a great empire, with no other restraint upon the exercise of the vast powers thus bestowed in the constitution, than requiring, that they shall be employed for the general good of all the states, and not to advance any partial, local, or sectional interests.

The independence of the several states, is therefore confined to the relation existing among them, as individual states. But, no state is independent of the union, that is, of the states, taken collectively as forming one nation under the federal constitution. Their absolute independence is limited, just so far as they have seen fit to limit it themselves, in that national compact; but no further.

What then is the construction, that ought to be given to this compact, in this respect? Two principles of construction are laid down in express terms, in the amendments to the constitution, and which consequently have become part of the constitution on itself.

1. ‘That the enumeration in the constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.’

2. ‘The powers, not delegated to the’ United States, by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.’

It is believed, that the former of these principles is not wholly free from obscurity. The intent of it, however, probably was, that the enumeration of certain rights expressly retained by the people, shall not be construed in denial of others belonging to them, not elsewhere given up in the constitution, and not contained in such enumeration.

Among the powers most characteristic of sovereignty, given to congress in the constitution, are,-

1. The power of laying taxes, duties, imposts and excises, for the purpose of paying the national debts, and providing for the common defence and general welfare, he.

2. The power to regulate commerce with foreign nations, and among the several states, &c.

3. The power to establish a rule of naturalization. By the present rule established by the exercise of this power, an alien may become a citizen of the United States, without being a citizen of any of the states. For, though by naturalization he becomes entitled to the privileges of a citizen of the United States, and consequently to the privileges of a citizen of that state to which he belongs, or wherein he may see fit to reside; yet, if the union should be dissolved, he would become again a mere alien, unless the state, in which he abode, saw fit to adopt him.

4. The powers to coin money; to establish post roads; to raise and support armies; to provide a navy, &c.

The restrictions upon the authority of congress, are merely such restraints and limitations, as the people of the United States have seen fit to impose on their government, and are not the exceptions merely of powers, reserved to the state governments.

The restriction upon the authority of the states, relate to the exercise of such sovereign powers, as the citizens of the states, if they had thought expedient, might have entrusted to their respective state governments; but, having confided some of these powers to congress, and having expressly restricted congress from the exercise of the rest, there would be an apparent inconsistency and impropriety, in permitting the states to exercise them.

No state, therefore, can enter into any treaty, alliance or confederation, whatever. This applies as well to treaties, alliances and confederacies, &c. between two or more states, as to treaties, alliances, &c. between one or more of the states, and a foreign nation. But, though certain powers are denied or forbidden to the state governments, in the federal constitution, which the people of the respective states might otherwise have delegated to their respective state governments; it by no means follows, that other powers not mentioned among those which are thus forbidden or denied, may, of course, be lawfully exercised by the states. For, this must depend upon the language of the state constitutions themselves, respectively.

The general superintending power, intended to be bestowed on congress, by the federal constitution, is also apparent from the provision, that the United States shall guarantee to

every state in the union, a republican form of government. This expression admits of considerable latitude of interpretation. It is probable, however, that any form of government, where the rulers were not hereditary, and depended for their appointment upon the choice of the people, would be considered a republic, within the true intent of the constitution. If the people of any state, therefore, saw fit to adopt a state constitution, in which the governor and senate were chosen for life, or during good behavior, and to vest in them the discretionary exercise of all the powers, which the state governments may now properly exercise, under the federal constitution, the government would still be a republic, within the meaning of the constitution; and, if those state rulers did not abuse their powers, in an attempt to overstep the limits prescribed by it, the general government would have no right to interfere.

The supreme political power of the government of the United States, is further apparent, from the clause in the constitution, in which the people of each of the states agree, ‘that the constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding.’ Perhaps there is not a clause in the whole federal constitution, the strict observance or enforcement of which, is more essential to the dignity of the general government, than the one now under consideration. For, if the judges of the state court were not bound to conform to the constitution of the United States, in their decisions, nor to obey the laws of the union, then one of the principal objects in view in the formation of the union, would not be obtained; and in fact there would be no union. But, as laws, which’ are enacted by congress under pretense of a power, which in fact is not granted by the federal constitution, are not binding, it may be asked, how shall it be determined, whether such power is granted or not, when a case, involving the rights of individuals under a law of the United States, comes before one of the state courts, and an objection is made to the constitutionality of the law? The answer which naturally suggests itself, is, that congress should generally be presumed to have acted within their constitutional authority, unless the contrary is clearly demonstrated. The state judge ought therefore to decide accordingly. But if he is convinced, that the law is enacted without such constitutional authority, he ought to decide so. If any authority is given at all to a state judge to decide in any such case, he must have authority to decide correctly, that is, according to the impartial dictates of his own judgment. A judge has no right in conscience, to decide contrary to what he believes to be the justice of the case, on the supposition, that the case will be carried to the constitutional tribunal in the last resort; for this may not take place. Any party, however, aggrieved at the decision of a state court in any such case, may always have a hearing before the supreme court of the United States; and when the question has been once settled there, the decision will furnish a rule for the state courts in all such cases from that time, by which they will be bound to govern themselves, whatever their own private opinions may be.

In order to strengthen the arm of the general government, the federal constitution has wisely given authority to congress to pass all laws, which may be necessary for the exercise of the powers, granted in the constitution. This clause is one of the greatest importance, because, though this auxiliary power might have been considered, as necessarily implied from the grant of the principal powers themselves; yet the omission would probably have given rise to innumerable objections and cavils. Under this clause, congress has a sufficient authority to apply an adequate remedy for every difficulty, that may arise in the execution of the powers granted in the federal constitution, and consequently, in putting in force all laws made by virtue of those powers. In pursuance of this general authority, given in the sweeping clause of the federal constitution, congress has taken care, by the creation of proper officers, with prescribed duties and ample powers, wholly distinct from the officers of the several states, to render the execution of the laws of the United States entirely independent of any act of any particular states, or of any of their officers, and without the necessity of requesting the consent or co-operation of the executive, legislative or judicial departments of the states, where such laws of congress are to be put in force. But, if it had been necessary, in any such case, to have the previous consent of the states, the execution of the law might have been greatly delayed, perhaps wholly frustrated; or, if the officers of the states were employed in the execution of the laws of the United States, as there would be no obligation upon them to perform such services, unless perhaps the several states enacted laws for the purpose of rendering it so, it would remain optional with such officers, whether to execute them or not. For, it has been found by experience, that the idol popularity, has sometimes induced even an officer of the United States, to resign his office, rather than offend the citizens of the state where he resided, by discharging his official duties. But, in general, the officers of the United States, not depending upon the states either for their appointments or for their continuance in office, supposing them to have a proper regard for their official oaths, can have nothing to hinder or delay them in the discharge of their duties. For, on the extreme supposition, that a law of the United States is unconstitutional, as well as impolitic and injurious to the interests of a particular state; still, unless it is decided to be unconstitutional by the supreme court of the United States, the officers of the general government are bound to enforce it. Nor is it clear, upon what ground, except a regard for the dictates of prudence, forbearance and temporary expediency, they would be bound to regard a decision of the state courts to the contrary, if they should assume to themselves a power to determine upon the subject. Where the courts of a state express their opinion of the construction, which ought to be given to a law of the United States, and ground their decision in the cause before them, upon the unconstitutionality of the law, the person aggrieved by the decision, if a private individual, may have his remedy at the regular constitutional tribunal, but will have no pretext whatever to resist the decision of the state court. But, on the extreme supposition, that a law of the United States requires one of the officers of the national government to perform a certain duty, and one of the state courts decides the law to be unconstitutional, is or is not the officer of the United Slates, however high and responsible his situation, bound at his peril to await the decision of the supreme court of the United States on the subject, before he undertakes to enforce the law contrary to the decision of the state court? Whatever the prevailing opinion may be on this subject, as to the legal duties, there can be none as to the moral obligation. Certainly, the utmost delicacy, moderation and forbearance ought to be used in all cases, where by possibility there may be a clashing of jurisdictions. The aim of each party should be, not so much to assert his strict right in the first instance, as, by mild and prudent measures, to put his adversary in the wrong, in the hope that the supreme court of the United States, whenever the case is regularly brought before them, will award ample redress to the party injured. And here, it is worthy of remark, that the principal cases, where there is reason to apprehend that public disturbances may arise between the general government and the states respectively, must result from a disagreement in opinion between the courts of the United States and those of the states. This is a singular proof of the prudence and foresight of the framers of the constitution. For, in general, such is the love of regularity and order, and the prudence and moderation of those persons who preside over the tribunals of justice, a fact -which has been verified by experience both with regard to those of the United States and those of the several states in the union, that the framers of the federal constitution were well warranted in supposing, that they had avoided, as far as possible, every occasion, which might give rise to internal disorders and civil commotions, on account of the undefined and undefinable powers and rights of the general and state governments respectively, when they had taken care, that no such unfortunate circumstances could ever happen, where one party or the other would not be manifestly and grossly in the wrong; the case of conflicting jurisdictions between the courts of the United States, and those of the state courts, being a solitary exception. And, it is believed, until some late unfortunate occurrences, to which it seems unnecessary to make further allusion, most reflecting persons would have come to the conclusion, that if there were no other sources of public troubles and dissensions between the United States and the several states, than such as arise from the collisions of their respective judiciaries, and the execution of their conflicting sentences and decrees, the country might enjoy a state of uninterrupted tranquility and repose forever.

But, if the legislature or the executive of a state, having come to the conclusion that a law of the United States was unconstitutional, notwithstanding a decision of the supreme court to the contrary, should array an armed force to resist the execution of the law, such conduct would undoubtedly be treasonable. See 2 Dall. 346. 4 Cranch, 75. 1 Paine, 265.

So, if they should attempt by the use of similar violent means, to enforce a law of the state, which had been decided to be unconstitutional, by the same court:

And, for the same reason, if they should resist in the same manner, the execution of a decree of the supreme court of the United States.

Neither would it be a crime of small magnitude with regard to the state itself, if the governor or legislature of a state, should venture to adopt any such rash measures in opposition to the general government. The state constitutions confer on the state governments no power of opposing the measures of the general government, under any circumstances. If any such power is ever exercised by the state authorities, it will be an act of dangerous usurpation, for which they will be answerable to their constituents, perhaps on an impeachment, perhaps on an indictment for a treasonable conspiracy. For, whence can the governor or legislature of a state derive authority or jurisdiction, to decide whether a law of congress, or a decision of the supreme court of the United States, is unconstitutional? If the citizens of the states had ever intended to bestow such power on the state rulers, the adoption of the constitution of the United States by those citizens, would have abolished such intention. For, a clause in it declares that it shall be the supreme law of the land; but, this is altogether inconsistent with a power in the governor or the legislature of any state, to oppose any measures, adopted by the general government by virtue of powers delegated in it. The same constitution has also provided a supreme tribunal for the decision of constitutional questions; consequently, the state authorities have no jurisdiction of any such question. On the extreme supposition, that the supreme court should usurp jurisdiction of questions not submitted to them by the constitution, the right to remonstrate belongs to the states, that is, to the citizens of the respective states; and not to the state rulers; for the plain reason already suggested, that the citizens have not delegated this power to the state rulers, either expressly or by necessary implication, in their state constitutions.

The constitution of the United States is the solemn compact of all the states, adopted from motives of the greatest expediency, or rather necessity. But, of what utility can it be, if the execution of laws or decisions made under its authority, may be resisted, whenever the governor or legislature of a particular state, under whatever pretense, believe or affect to believe such laws or decisions to be unconstitutional? Such an act of opposition may at first sight, appear to be aimed at the administration of the general government for the time being; for the government being of the nature of a company or association, is a mere abstraction, and consequently impassible; but the wrong is evidently offered to the other states, that compose the federal union. For, it is they, with whom the compact was formed; and, it is they, who are injured as well as contemned, when the compact is violated.

It might be supposed, at first view, that in ordinary cases, there would be but little reason to apprehend, that the rulers or government of any state, would ever array themselves in opposition to any measures of the general government. Because, if a state legislature should enact a law for any such purpose, it would be merely void, and the citizens of the state itself would not be bound by it, and would be protected by the constitutional tribunals of the union, in their disregard or disobedience of such law. Besides, if they obeyed such law, any further than they were actually compelled to do so by the state rulers, it would not be sufficient before the national tribunals, to excuse an inconsiderable assault and battery, and far less to afford a justification for murder, treason, insurrection or rebellion. The same rule would apply to the courts of the state. For, if they had not adopted the same views or opinions as the governor and legislature of the state, they also, would decide that such opposition to the general government was illegal, and that all laws of the state, he. enacted by the legislature for such purpose, were void ; and, in any such decision, they would be sustained by the supreme court of the United States, and ought lo be protected by the power of the union.

But, if the highest courts of a state should undertake to decide, that a decree of the supreme court of the United States was unconstitutional, and refuse to obey it, or suffer it to be obeyed, or to be enforced by the civil officers of the United States; and the governor and legislature of the state should raise an armed force to resist the power of the national government, and should make an actual opposition to it; this, it cannot be doubted, would be treason in all persons in the state, whether rulers or citizens, who voluntarily took an active part in it. But, it would not necessarily amount to a dissolution of the union, unless the citizens of the state sanctioned the violence of their rulers, with their express approbation, given in their primary assemblies called together for that purpose. It would amount to nothing more than a rebellion, and should be treated as such. The quiet and sober-minded citizens of such state should be protected against the violence of the insurgents, and the latter should be reduced, as soon as possible, to a state of civil subordination to the federal government.

But, according to the theory of the whole system of state governments, taken in connexion with the federal government, if the people of such state should sanction such measures of the state government in their primary assemblies, such state, in effect, would already have separated itself, violently and irregularly, from the federal union. The relations afterwards subsisting between that state and the other states in the union, which would not necessarily be dissolved by the secession of one or more particular states, would depend upon the moderation and forbearance of the administration for the time being. For, the federal government, without perhaps having a strict right to compel any state to continue its adherence, contrary to the express unanimous wish of all the citizens or legal voters of such state, would unquestionably have a right to claim of it a full satisfaction of all just demands, as well as an indemnity for all injury arising to the union, or to any other of the states, or to any citizen of the United States, though a citizen also of such seceding state, if he did not consent to such secession. The federal government, also, notwithstanding a state should see fit to withdraw itself in this irregular manner from the union, would have a perfect right to compel it to observe and comply with the terms and conditions of all treaties, regularly made by virtue of powers delegated to the federal government in the constitution of the United States. For, why take the pains to frame and adopt a constitution, if the parties did not expect to be bound by it? And how can the parties be bound by it, if each has a right to refuse compliance with it, at discretion? But, however this may be, if at the time of calling a state convention, for the purpose of ascertaining the wishes of the people of the state, on the subject of a secession from the union, there were a considerable number of voters, though a minority of the whole, given in favor of adhering to it it, would be a mere question of policy, for the other states to decide, whether such state should be permitted to withdraw from the union or not. For, the obligations of a national compact of general union, purporting to be formed as well for posterity, as for the generation of men then in existence, and which, therefore, it was intended, should last as long as the whole people of all the states should have an independent existence, are not to be assumed and cast off again, according to the caprice of an ignorant and misguided multitude, under the influence of selfish interests or turbulent and ungoverned passions. The excitement, which men of superficial but popular talents sometimes occasion among the less informed and more combustible class of citizens, by exaggerating public grievances, some of which from the imperfection of all human institutions, are unavoidable, and consequently cannot be prevented by the wisest and best organized administration, can furnish no rational ground for dissolving a compact of this nature. The federal constitution was formed after long deliberation by men of distinguished abilities, and, after a critical examination and thorough scrutiny by assemblies in each state, of men selected for their great knowledge, experience and political discernment, was recommended to the citizens of the several states. In consequence of this recommendation, the constitution of the United States was adopted by the people of the thirteen states, which first constituted the federal union, and who in their primary assemblies ratified it and bound themselves, and their posterity being citizens of some of the slates, to comply with and obey it. Whether any after generation of citizens of any single state, even though unanimous, have any absolute right of dissolving their connexion with the United States, is not satisfactorily made out in the affirmative. For, it has never been demonstrated, to the satisfaction of any but political smatterers without knowledge or principle, that every body of men have a right to abolish the lawful government of the territory under which they have been born and educated, whenever they fancy they can govern themselves better; at any rate, it is not yet settled, that the rest of the nation are under any obligation to submit to such an arrangement. But, if the citizens of such state are not unanimous; if there is a respectable minority among them, against secession; the federal government has an undoubted right to compel the state to submit to its authority. Such an exercise of power, it is not improbable, would eventually receive the approbation of the very persons, who under the influence of some popular speaker, may have raised the loudest shouts in favor of separation and disunion. For, the inconsiderate resolutions or actions of any body of men, acting under the transient excitement occasioned by the declamation of some improvisalori, who from practice has acquired a graceful and fluent manner of speaking on all subjects, without any other advantage than a very superficial view of their tendency and consequences, are certainly not to be compared with the deliberations of Jay, Madison, Hamilton, Pendleton, Governor Randolph, and other distinguished statesmen. When the excitement is over, therefore, the people will view with regret, perhaps with shame and disgust, any excesses or disorders, which they may have committed during their infatuation; or, if they have been arrested in their career of madness and folly, will feel grateful to those who have performed for them so kind an office.

To suppress any such internal commotion, however, it is hoped, that it will never become necessary, even under the most threatening appearances, to resort to any harsher measures than persuasion or remonstrance. If the majority of the citizens of a state should be in favor of adhesion, there would probably be but little occasion for the general government to interpose for the preservation of tranquility and order. And, if the majority were in favor of separation, the proximity of a small national force without the limits of the state, would be a sufficient protection for the minority, who adhered to the federal government, if they should be threatened with violence, and who should be cautioned against the use of any force but in repelling aggression. By this moderate course of measures, the temporary excitement would soon subside. When the fit of intoxication was over, which would soon be the case if not imprudently exasperated, intemperate resolves would give place to a spirit of prudence and moderation. A total change would take place in the public sentiment, and consequently in the state administration. As the people of the state resumed the exercise of their reason, they would supplant in office, folly and rashness, by good sense and a spirit of conciliation. If unfortunately there should be an attempt to array an armed force in opposition to the general government, it would probably be suppressed in a moment. The most turbulent and violent of the leaders, and consequently idolized by the credulity of the abused people, as an illustrious patriot and hero—who perhaps fancied himself a state Washington—being arrested, would see his partisans abandon him to his fate. Being then tried and convicted of treason, he would be surprised to find himself regarded by the multitude whom he had attempted to mislead, neither as a patriot, nor a renowned hero, not even as a martyr of liberty, but merely as an unsuccessful political incendiary; while the citizens of the state, having learned a useful lesson respecting the arts and fate of demagogues, and having put in office men of sound judgment and deliberate consideration, would be surprised to find that they can live in happiness and prosperity all their days, notwithstanding the fancied oppressions of the general government.

To return; from the preceding observations and reflections, it cannot be difficult to determine how far the United States constitute a single consolidated empire; and,in what respects, they are merely a confederacy of independent nations. And it is evident, that there is not the slightest inconsistency either theoretical or practical, in relation to the subject, if rightly considered. For, within the powers delegated to the legislative, judicial and executive departments of the general government, the United States form one grand consolidated empire, and within the prescribed limits of these delegated powers, no other difference can be discerned between this government, and the most absolute monarchy on earth, while, in the actual exercise of no greater powers than these, except in the single circumstance, that the monarchy restrains itself; but the general government is restrained by the federal constitution. So far therefore as the exercise of the powers delegated requires, the states cease to be independent, and consequently, sovereign and independent. The state governments however, it must be repeated, have nothing to do with this subject. It concerns merely the citizens of each state, taken collectively as forming a distinct tribe or nation; the general government, formed by the constitutional compact between all these states; and the citizens of all the states taken in their new relation to each other under this national compact, as fellow citizens of the American republic. It is true, that a citizen of each state has, in certain respects, the freedom of all the other states ; but should the union be dissolved, it will be found, that he derives this advantage from the federal constitution alone; and whether he is afterwards to be considered as an alien, or as a denizen of any other state, will depend upon the laws of that state alone.

That it was not intended by the federal constitution, to consolidate the states, any further, than is necessarily implied in the exercise of the powers delegated in it, is evident from the express provision of the constitution, that, no ‘ new state shall be formed by the junction of two or more states or parts of states, without the consent of the legislatures of the states concerned, as well as of the congress.’

Further, the states, in many respects, seem wholly independent of the union. The government of the United States cannot appropriate an acre of land belonging to any state, or assume exclusive jurisdiction, without the assent Of grant of the state.

If an officer of the United States commits a crime against the laws of any state, he is amenable to the state court where the crime is committed, and the judgment of the state court will be final. If the officer should set up a defence under the laws and constitution of the United States, for the purpose of bringing the case before the supreme court of the United States, that court will examine no farther into the merits of the case, than to ascertain whether the laws or constitution of the United States are at all brought in question; and if not, the judgment of the state court will be permitted to take its course.

The slates are perfectly independent of each other, and their dependence on the general government is just so much as they voluntarily agreed to, in giving the government of the United States a supremacy in certain defined respects, by the adoption of the federal constitution. They are sovereign within their own territory, therefore, in all other cases; and if congress should violate this sovereignty by enacting unconstitutional laws, the state wronged may have the subject examined before the supreme court of the United States, the tribunal of last resort for constitutional questions, and if the law should be decided to be unconstitutional, it will lose its validity. But, it may be objected here, and the objection deserves consideration, If the supreme court is the tribunal of ultimate resort for all questions arising under the constitution of the United States, of what avail is the express limitation of the powers granted by it to the federal government? For, if congress should pass an unconstitutional law, and the supreme court should declare it to be constitutional, to what remedy can any state or individual injured by it resort? Certainly to none that is not paramount or collateral to the constitution itself, as, for instance, a convention of the states, in order to amend it by declaring its intention so clearly as to prevent the possibility of misinterpretation. This subject has been partially discussed ante p. 152. A few remarks, in further illustration of the view there submitted to the discerning reader, but in a different connexion, it is hoped will be excused here. Suppose congress to,enact an unconstitutional law, and the supreme court of the United States, making the same mistake with the -members of congress, should decide it to be constitutional, must a state submit to have its rights sacrificed? To answer this question correctly, it would seem necessary to establish a distinction analogous to that suggested in the place just referred to, to wit: that, as the constitution is a compact of the several states in the federal union, conferring certain powers on the federal government, and reserving others to the states; where laws are made, the subject matter of which is within the powers granted to the general government, the supreme court is the proper tribunal to decide whether they are constitutional or not. But, if the subject matter of the law, is not within the powers delegated to the general government, no state can justly be bound by such law, even on the absurd supposition, that the supreme court should decide it to be constitutional. Here it may be objected again, if this court has no conclusive jurisdiction, except where the subject matter of the law is within the powers delegated to congress, it follows, that this court will have no authority to decide a law to be constitutional, except in cases where there is no need of any such decision, viz, where the law comes within the express words of the constitution, made use of in defining the powers of congress. But, the answer is, that the subject matter of a law may be clearly within the powers granted to the general government, and yet the law may be unconstitutional. In any such case the court will have jurisdiction to decide; and though they should decide wrong, the decision will be binding on the states. To illustrate: The power of taxation is delegated to congress; yet, if congress should impose an unequal tax, the law would be unconstitutional and consequently void; but, as the subject matter of the law is within the power delegated to congress, the supreme court has a power to decide finally in relation to it. On the other hand, as the constitution confers no power on the general government to interfere in the municipal concerns or internal organization of a state, if congress should enact a law to control either in any respect, it would seem, that it would be void, and though the supreme court should decide it to be constitutional, the decision would not bind the states, because the subject matter of any such law, does not come within the powers delegated to the general government. In cases like these, it can hardly be supposed that the several states, in the formation of the federal constitution, intended entirely to resign to the supreme court, the right not merely of construing that compact, for this is not doubted, but of extending it by construction to matters not contemplated by it.

How far these remarks may apply by way of analogy to the case of enforcing the decision of an arbitrator, appointed by the United States and a foreign government, in relation to disputed boundaries between the foreign government and one of the states; and how far this point ought to depend upon the inquiry, whether the state whose territory is concerned, had previously consented to such arbitration or not; or how far these remarks may be considered applicable to the case of a state, which has forcibly taken possession of a territory, which, agreeably to a decision of the supreme court, is protected by treaties made with the United States, is submitted to the discerning reader.

Let it be supposed, further, that congress should require the justices of the peace holding commissions under the several states, to perform certain acts when requested, under a certain penalty, there can be no doubt, that though such law might be a sufficient authority to the justice to perform the act, so far as the United States is concerned, yet it would be wholly void as to the penalty ; because the subject matter of the law, so far as requiring a:state officer to perform any act under a penalty, does not fall within any provision of the federal constitution. It is true, the state officer may lawfully do the act for the sake of the fee, which he may be entitled to claim for it under the act of congress; but in any other respect his services will be merely gratuitous. Who then, it may be asked, is to decide whether a certain power is granted to congress in the federal constitution or not? It seems, that the supreme court has conclusive and unquestionable jurisdiction to decide, that a certain power is not granted; that the court has also conclusive jurisdiction to decide that a certain power is incidental, that is to say, absolutely necessary to the exercise of some other power expressly granted in the constitution, and consequently that such incidental power is also granted. But, unless they determine such power, not being an express one, to be thus incidental, they cannot bind the state by a decision, that the law made by virtue of it, is constitutional. So, the supreme court cannot bind the states by a decision, that a certain power is incident to a certain other power, where such supposed incident power is expressly prohibited in the constitution. But, if the constitution does not expressly prohibit the exercise of the power, decided by the court to be incidental, the decision of the court will conclude the states, even on the supposition that it is erroneous in fact. Because, where the supreme court has jurisdiction at all, as no other tribunal is provided for the correction of errors, its decision must be taken for as near an approximation to absolute right, as the fallibility of human nature permits; and consequently should be submitted to by the states, who have so far constituted that court their final arbitrator.

The express words of the constitution of the United States are, that “the constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made or which shall be made &c. It is plain then, that it is only those laws which are made in pursuance of the constitution, that will bind the state courts, even although sustained by a decision of the supreme court, unless that court has constitutionally a jurisdiction over the subject matter. In the case however of the most manifest usurpation of power on the part of congress, it would be highly unjust as well as inexpedient, for any state to array itself against the United States. For, an unconstitutional act can never with propriety be ascribed to the people of the union, who have expressly refused to congress the power to pass any unconstitutional law. Until the people have received notice of it, and have had a full opportunity of learning the true state of the case, and of electing another set of public officers, any such unconstitutional act should be ascribed to the general administration only. Till that time, any state which considers itself aggrieved, will best consult its interests, by restricting the exercise of its powers to endeavors to enlighten the public mind, and, in this way, induce them to elect wiser legislators.

Continued in CHAPTER VI. Of the rights reserved to the people of the United States; not being granted either to the general government, or to the state governments.

See the other parts of this series:
RIGHTS OF AMERICAN CITIZENS: General Rights; Division One
RIGHTS OF AMERICAN CITIZENS: General Rights; Division Two
RIGHTS OF AMERICAN CITIZENS: General Rights; The Social Compact
RIGHTS OF AMERICAN CITIZENS: The Powers delegated to the General Government in the Federal Constitution
RIGHTS OF AMERICAN CITIZENS: Powers delegated to the State Governments
RIGHTS OF AMERICAN CITIZENS: The Independence of the States
RIGHTS OF AMERICAN CITIZENS: The rights reserved to the people of the United States
RIGHTS OF AMERICAN CITIZENS: Of the right of suffrage and of elections
RIGHTS OF AMERICAN CITIZENS: The Liberty of Speech and of the Press
RIGHTS OF AMERICAN CITIZENS: The Power of Courts to punish for Contempts
RIGHTS OF AMERICAN CITIZENS: The Law of Libel in relation to Public Officers
RIGHTS OF AMERICAN CITIZENS: The mode of obtaining redress for infringement of civil or political rights

RIGHTS OF AMERICAN CITIZENS: Powers delegated to the State Governments

10AThe Rights of an American Citizen: With a Commentary on State Rights, and on the Constitution and Policy of the United States by Benjamin Lynde Oliver published 1832


Of the Powers delegated to the State Governments, by the people of each State respectively.

As the people of the several states have formed a political union by the federal constitution, for the purpose of providing for the general welfare of all; and, for the more effectual attainment of this object, have agreed upon a frame of government for the United States, thus constituting themselves to a certain extent a consolidated empire or government; in the same manner, the people of each of the states in the union, have formed a social compact with each other, and have agreed to adopt a state government, for the purpose of providing for the safety and happiness of each and of all the inhabitants, residing within their respective territories. The general government has the care and control of all the external relations of all the states collectively, as one great nation; the state governments have the regulation of the internal affairs of their respective states, and it is their duty to provide for the domestic safety and tranquility of each citizen. The former protects the whole nation, and every state or constituent part, from the hostile aggression of foreign enemies, and all other political dangers, arising either from external or internal causes; the latter regulates the social intercourse of private individuals with each other in all the various relations of society, and furnishes as far as is practicable, a protection against private violence, fraud or other injustice. As the former depends upon the will or assent of the whole people of all the states in the Union; so each of the latter depends upon the will or assent of all the people of each state, collectively. As the national compact of the United States is contained in the federal constitution; so the social compact of the people of each state, is contained in their state constitution, respectively. For the more clear illustration of this doctrine, an example may be taken, viz: The people of the state of Massachusetts have made a social compact with each other, in their state constitution, for the purpose, among others, of securing their natural rights, as far as they think consistent with the necessary restraints of organized society; in this case they act as individuals; they have also, collectively made a compact with the inhabitants of each of the other states collectively, for their mutual safety and defence against foreign enemies, the terms of which compact are contained in the federal constitution; in this case, the inhabitants collectively of each state, act as a distinct tribe and independent nation. In this manner and to this extent, the whole people of the United States, by the adoption of the federal constitution have become one great nation, with this qualification, however, that, if the union should be dissolved, the whole nation will not be resolved into its primary elements, i. e. the people in a state of anarchy, or, in a state of nature, but merely into those elements of a second order, viz. into the tribes or nations, which now reside on the territories of the states respectively, and which are now, and would then still continue to be, in subjection to the respective state governments.

states rights 1The people of the United States have agreed, that the federal constitutions shall be paramount in power and obligation to the constitution of the respective states, so that, if there should be discovered any incompatibility between the former and any of the latter of these, it is the latter which must yield. And as some of the state constitutions were adopted previous to the federal constitution, and some afterwards, it follows, that if any of the powers previously bestowed by the people of any of the states, on their respective state governments, in their state constitutions, should be found inconsistent with any powers afterwards conferred by them on the federal government in the federal constitution, the exercise of those powers by the state governments would be so far taken away, or more properly suspended. On the other hand, if the people of any state, since the adoption of the federal constitution, have granted any powers in the State constitution, to their respective state governments, and those powers should be found incompatible with any power previously granted to the federal government, in the federal constitution, the grant of power in the state constitution, will be considered as so far void. In the former case, it is presumed that the people of the states, by their adoption of the federal constitution have agreed to waive the provisions or the state constitution, so far as the inconsistency extends. In the latter, it is considered not to be within the power of any state, to curtail the powers granted in the federal constitution, without the consent of the other states.

From these general propositions as a basis, it follows, that any article or provision in a state constitution, which may interfere with the provisions of any national treaty whether made before or afterwards, if agreeable to the constitution of the United States, will be so far void. And for the same reason, if any article in a state constitution should be found to interfere with an act of congress, whether enacted before or afterwards, agreeably to the constitution of the United States, will also be so far void. Because, either an act of congress, or a treaty, made agreeably to the constitution of the United States, is entitled to the same respect as the constitution itself, since each must be made by virtue of powers granted by it. But, where a certain power is granted to congress in the federal constitution, which without any inconsistency or inconvenience may also be exercised by the states,’ the grant to congress, does not necessarily imply a prohibition to the states to exercise the same power. But, where the exercise of the same powers by both the federal government and the respective state governments, is incompatible, if both should legislate on the same subject, the act of congress must prevail and will suspend not only all laws made by the states concerning that subject, but of course the power itself in the state constitution. For example, congress have the constitutional power to pass a general bankrupt law ; but, until they exercise this power, the states may enact a bankrupt law within their respective territories. If congress afterwards enact a general bankrupt law, this annuls the state bankrupt law, and suspends the authority of the state legislatures to act on the same subject. If congress then repeals the general bankrupt law, the power of the state to legislate on that subject, again revives. See 4 Wheat. 122.

It may be remarked here incidentally, that, as the states cannot directly impede or hinder the exercise or operation of any of the constitutional powers of congress, or of any department of the general government, for the same reason any law of a state, which indirectly tends to the same purpose, will be so far void. See 4 Wheat. 316.

It will be observed on consulting some of the state constitutions, that they contain words expressive of a grant of powers, which though limited, are sovereign within the limits. These, it is obvious, must be suspended of annulled, so far as they are irreconcilable with the constitution of the United States, or any treaty or act of congress, made by virtue of it. But, if it should ever happen, that the Union should be dissolved, without any fault on the part of the state governments, it cannot be doubted but that all such sovereign powers expressly granted in the state constitutions, will immediately revive and be in force, until altered or resumed by the people of those states respectively.

Subject to these few restrictions and rules of construction, the powers delegated to each state government by the people of the state, may be readily ascertained by consulting the state constitution. And here it will be observed, that some of these social compacts, have a declaration of the natural rights of the citizens prefixed, with an intimation how many of them, and to what extent, they are submitted to, or exempted from the control of the state government erected by the state constitution; or, from the powers granted by it to the state rulers.

If any contradiction should seem to exist between the bill of rights and the constitution of any state, in any particular respect, it would seem reasonable to consider (he constitution as the compact, in which the powers of the state governments are delegated, and the bill of rights as merely the basis or substratum, on which such delegation is predicated. The constitution therefore, in any such case, where the intent of it is clearly expressed, ought not to be restrained by the bill of rights. But where the intent of the constitution is not precisely ascertainable of itself, it would be very proper to consider the bill of rights, as furnishing the best means of ascertaining the true meaning of those who framed the constitution, and giving a just construction to it. Where the bill of rights is clear, declaring explicitly what rights the people are entitled to enjoy in relation to a particular subject, if the constitution is silent in relation to it, all laws or regulations of the legislature made not to preserve, but to contravene, limit, or infringe such rights, are void ; because they will have been enacted, without any authority from the people. But, if any such law or regulation is made contrary to any provisions of the constitution of the state, it will be void, because, enacted against the express will of the people.

As it would not be practicable, within a reasonable compass, to give a detailed account of each of the state constitutions, a few general remarks only upon the powers delegated in them, by the people of the respective states to their state rulers, will be submitted to the reader.

wewantlibertyThe state constitutions contain, in the first place, the frame of government, which the people of the states have seen fit to adopt for the regulation of their respective territories; secondly, those powers which the people have delegated to their rulers; and lastly the restrictions upon those powers.

1. The frame of government of each of the states, is very similar in principle, to that of all the rest. Each of them has a governor or chief executive officer, with or without a council; a legislature, consisting of an upper and a lower house, or a senate and house of representatives; and a judiciary, which is either expressly established in the constitution, or erected by the legislature by virtue of powers conferred on them for that purpose, in that compact. The governors are chosen for one or more years; but no one holds his office either for life, or, during good behavior. The democratic principle, which runs through all the state governments, as well as the government of the United States, is most discoverable in the legislature, consisting of a senate or upper house, a body of men, presumed to be distinguished for their gravity, dignity of character, experience and wisdom; and, a lower house, or house of representatives or delegates, supposed to consist of men arrived at mature age, but retaining their full strength and capacity for active business. These characteristic qualifications however are sometimes lost sight of, and are frequently found interchanged in the two houses. It is not very unusual to see youthful sages in the senate; it is not uncommon to behold in the lower house, ardent temperaments, whose desire to render themselves conspicuous by their eloquence, the frosts of age have been unable to chill.

Many of the states have taken care, that the lower house shall not become so numerous, as to be liable by possibility, to assume the appearance of an irregular or primary assembly of the people. Some however still continue oppressed as with an incubus, by a house of representatives excessively numerous, which the people have frequently, but in vain, expressed a wish to have diminished.

The disadvantages, which might naturally be expected to result from too numerous a house of representatives, are,-

1. Unstable legislation; many new members are desirous of ‘rendering themselves conspicuous by the introduction of some fancied reform, and this, without being well acquainted with the state of the laws then in force. The disadvantage of frequent changes in the laws, is, that the people never know when they are safe; for, they hardly can have time to learn what the laws are before they are repealed, and new ones enacted.

2. A great increase of unimportant business in the legislature: this, in all probability, would arise, in part, from the zeal of the members to seem active in the service of the people; and partly, because the proximity of a member of the house, would frequently suggest to his neighbors a variety of applications to the legislature, which might hardly be thought of under other circumstances. The time consumed by the legislature. in the consideration of private applications respecting affairs of little or no moment to the public, may frequently be of more value in a pecuniary point of view, than the grant or denial of the application; yet, as every member in the house has a right to be heard on every subject, the time consumed in any debate, may obviously depend upon the number of speakers who choose to avail themselves of this right; this naturally suggests,

3. Prolonged debates, and almost interminable speeches. The propensity to indulge in popular declamation, which excites ambitious persons to deliver long harangues before numerous assemblies, loses much of its force, when they find themselves in the presence of a smaller body of individuals, each of whom the orator perceives to be a man of experience and discernment, and consequently not likely to be agreeably affected, or at all influenced by common place appeals to popular prejudices or predilections, the flourishes and sallies of debating clubs, or the rhetoric of the academies.

4. A vast expense to the state, not only directly, in money actually expended, but – indirectly, in the waste of time, which might be more profitably employed. This is a subject of frequent remark, but the amount of the loss arising to the state in this way, is not estimated as it ought to be, from not being considered with sufficient attention, and submitted to calculation. Let it be supposed then that the senate contains forty members, and the house of representatives double that number, which, if the difference in years and experience, and consequently in weight of character, is considered, will be a reasonable or proportional estimate. Suppose the pay of the representatives to be two dollars a day, apiece; and the travel fees of each member, one with another, to amount on an average to five dollars for both coming and returning, and the session of the legislature to continue ninety days. Then the whole charge on the state for a single session of the house of representatives, will be composed, so far as the present subject is concerned, of the following particulars. The attendance of eighty members, at two dollars a day for ninety days, will amount to $ 14,400; to which adding the travel fees of eighty members at five dollars apiece, viz. four hundred dollars, the whole amount will be $14,800. On the other hand, let it be supposed, that the house of representatives contains five hundred members. Then, at the same rate, it will be seen, that their pay, being two dollars a day, for five hundred representatives, for ninety days, will amount to $90,000, and their travel fees will be $2,500; the whole amount of both will be $92,500. Here, it is apparent, without any nicety of calculation, that there would be an annual saving to the state of $77,700 in money. If it is further considered, that, in all probability, the session of the legislature would be shortened, at least one third, by the reduction of the numbers of the representatives, in consequence of the subtraction of unimportant business, the suspension of unprofitable debate, and the infrequent recurrence of questions of order and formality, there would be a further saving of $4,800, with about half as much for the senate, viz. $2,400; amounting together to $7,200 to be added to the former saving of $77,700. The whole saving to the state, in money alone, in consequence of thus reducing the number of representatives, f thus appears, would probably be $84,900. This howeve would not be all, as appears from the following considerations It would be a degrading estimate of the value of the service of those individuals, who are elected representatives in tin state legislature, where their services are wanted at all, t(‘ suppose that their private business, which they are obliged t( neglect while they are attending in the house of representatives, would not bring them in, as much as the pay which they receive for their public duties. On the supposition, then, that the public good would be as well provided for in a less numerous house of representatives; and that the attendance of all beyond the proposed number of eighty representatives, is wholly useless; and that each of those members, on an average, would, in his private capacity, or, in his regular calling, perform services, or earn, to the amount of two dollars a day; it will appear, that the public lose by having five hundred representatives, the amount which four hundred and twenty of them might earn in ninety days, at two dollars a day, deducting however every seventh day. This loss will readily be found to amount to $75,600. And though it is not a pecuniary loss, like the abstraction of money directly from the treasury of the commonwealth; yet, it ought by no means to be wholly neglected by those, who wish to form a correct judgment of the expediency or inexpediency of public measures.

Under these views of this subject, can any one doubt, that it would greatly advance the public interest, in any such case, to reduce the representation in this manner and to this extent? Or, if eighty members of the house were selected, can any one doubt, that they would be a far more wise and efficient body than the whole number of five hundred, though including the same eighty? Would not the public service be better consulted and sooner performed? Would not the commonwealth in that case, be better able to afford to attend to minute business, at the same time that less of it would be brought before the legislature? Would not there be fewer laws passed, and would they not be more likely to survive the session of the legislature, at which they were enacted? If these advantages would result, would it not be better for the other four hundred and twenty representatives to remain at home?

But, perhaps it will be objected, that, it will be impracticable to apportion this reduced number of eighty, properly or equally. But, in fact, there needs be but little difficulty on the subject. Let the apportionment be, that each county send one, and then let the rest of the eighty representatives, be apportioned among those counties whose population entitles them to more than one representative, in proportion to the number of inhabitants, or the rateable polls, or the qualified voters for representatives, as may be judged best.

If it should be objected, in any such case, that the mode of electing representatives, will, in this way, become too much assimilated to that of electing senators; the answer is, that, let the representatives be chosen in what way they may, still they must be chosen by the people of the same state, who elect the senators. To district the state in a different manner for one class than for the other, is merely a piece of political pedantry, and would be attended with no benefit whatever. Its only recommendation is a show of wisdom. But, perhaps it will be objected, that the representatives are in the nature of agents for the towns by which they are chosen; and, if this mode of apportionment should be adopted, the towns would lose their agents. The answer is, that this would be a general benefit and not a disadvantage. Because, it would be much better that, the representatives should consider themselves, as the representatives of the people of the state, and owing a duty to the whole state, than consider themselves as the mere agents or instruments of the towns which send them, and accountable to them alone for their behavior in office. If they consider themselves in the former light, they will feel bound to consult the general good of the whole state, though it should happen to be inconsistent with some inconsiderable local interest. But, if they consider themselves as the agents of the towns, they will be tempted to sacrifice the good of the state, to that of the little clan which elects them, whenever those interests come into competition, from an apprehension that otherwise, they shall not be again returned to the legislature.

If the representatives are chosen in the way suggested, and their number is limited to double that of the senate, they will become at the same time more independent, and more respected. Petty intrigue and compromise will be more likely to cease. There will be less fluctuation in the laws, and there will be a greater probability that the weak point in a democratic government, may become equally its ornament and strong hold.

The future historian will probably smile at the simplicity of the citizens of any state thus situated, who should confide the task of reforming its representation in this particular, to the representatives themselves, Whose numbers are to be reduced by the amendment. Is it to be expected that the representative of an inconsiderable village, will so far consult its interests, as to vote himself out of the house of representatives, even though he should relieve the village of a large proportion of its state tax ; a consequence, which it has been shown, will certainly follow from the reduction of the number of the representatives? That they ought to be reduced, few will risk their reputation for political sagacity, so far, as to deny; but, the object of a denial of its expediency may just as well be obtained, by refusing under one pretext or other, to concur in any amendment which can be proposed, and making it a theme for never ending debate. If the people wish to have this measure adopted, they should take care to give their representatives explicit instructions to that effect; for, it is an evil, which yearly increases with the growth of the country, and will never remedy itself.

2. With regard to the powers delegated to the state governments by the people of the respective states, in their state constitutions, it may be remarked, that, all these powers may be reduced to the general heads of regulating the election or appointment of all public officers; making provision for the administration of justice; providing for the support of the government of the state, and adopting such measures, and enacting such laws from time to time as shall be found expedient for the safety, welfare, growth and general prosperity of the state; always however in subjection to the powers delegated to the general government in the constitution of the United States.

For the purpose of obtaining these general objects, particular powers are given in the state constitutions, more or less extensive and subject to various restrictions. Beyond these express powers, and such others as must necessarily be implied, in order to render the exercise of those which are expressed, effectual, neither the legislature nor any other branch of the state government, can constitutionally proceed. If they should attempt to do so, it would be an attempt to usurp power; and their laws or other acts, would be void and without obligation. The following short report of a case, the insertion of which, it is hoped the reader will excuse, may serve to illustrate the doctrine on this subject. It is the more worthy of notice, because it shows the necessity of having some check to prevent the usurpations and encroachments of the legislative departments of the freest governments on earth.

Massachusetts. Supreme Judicial Court. February Term, 1789. E. Goddard and alt. v. G. Goddard. The case was, G. Goddard sued out a writ of ejectment of lands in Roxbury against E. Goddard, returnable to the court of common pleas in Suffolk, July term, 1786, at which term E. Goddard was defaulted, and G. Goddard had judgment for seisin and possession, which judgment was executed by a writ of Habere facias possessionem. Afterwards, November 5th, 1787, the general court, on the petition of Jona. Metcalfe and uxor, Resolved, for reasons set forth in the petition, that the prayer thereof be granted, and that the said Jonathan and Hannah, his wife be empowered to re-enter the said action, and to become parties to the said suit at the common pleas in Suffolk, in January term in 1788, and the court are hereby authorized and directed to proceed thereon, according to law and the rules of the said court, in the same manner as if the said action had been regularly continued in the said court; the said Jonathan and Hannah, serving the said G. Goddard with an attested copy of the resolve, fourteen days at least before the sitting of the said court. Afterwards, at January term aforesaid, the action was re-entered, and the said Jonathan and Hannah were admitted by the court of common pleas, parties to the suit, and at the same term the action was dismissed, the said Jonathan being dead. Afterwards, on the petition of Fisher Ames, Esq. on the behalf of the said Hannah, the general court Resolved, that the said judgment recovered by the said G. Goddard, be annulled and reversed, and that the said writ of Habere facias possessionem, and all proceedings in pursuance thereof, be rendered null and void; and the clerk of the court of common pleas was directed to carry forward the action to July term, 1788, as if it had been regularly continued and not dismissed; and that the said Hannah should be admitted a joint defendant with the said E. Goddard; and the court of common pleas, and the supreme judicial court (if the same should be carried there) should have cognizance thereof in like manner, as if it had not been defaulted and dismissed, and the said Hannah had been an original defendant with the said E. Goddard; and if the said G. Goddard shall not prosecute his action, or shall not proceed therein, the said courts are required and directed to render judgment for the defendants, for their possession and costs, and to award a writ of Habere facias possessionem, in like manner as if the said Hannah and E. Goddard had demandad the same by the writ aforesaid. Accordingly at July term, 1788, the action was brought forward, and the said Hannah admitted a joint defendant, with E. Goddard, by order of court, and G. Goddard appears, and the pleadings are filed as follows; G. Goddard objects to the resolve as unconstitutional and against law; and the opposite party agrees to carry the cause or action up, ‘ for the judgment of the supreme judicial court, and that, when under the consideration of that court, the said G. Goddard shall have and be entitled to all and every advantage in the cause, whatever, as well respecting the said resolve, as the parties, and the action itself, which he now has or can have before the court of common pleas; and no injury or disadvantage shall accrue to the said G. Goddard, by reason of his thus appearing in this court in this manner, if the law would subject him otherwise to any.’ On which agreement the action was carried by a demurrer to a bad plea, to the supreme judicial court. August term, 1788; at which term the parties appeared. After argument upon the force and effect of the resolution of the general court, the cause was continued for advisement to February term, 1789, when the court ordered the following special judgment to be entered, viz.; ‘This cause appears to have been entered at a court of common pleas, held at Boston on the first Tuesday of July, 1788, in pursuance of a resolve of the general court, to which resolve the said G. Goddard objects and demurs, because he says, that by the thirtieth article of the declaration of rights it is declared, that in this government, the legislative department shall never exercise the executive and judicial powers, or either of them; that the legislature of this commonwealth cannot by act or resolve nullify and reverse a judgment of court, and the consequent proceedings thereon, without exercising the judicial power; that it plainly appears from the resolve of the general court, copies of which are among the papers of the case, that this suit is now pending there on the mere power and authority of the same resolve, which expressly declares the judgment of the court of common pleas upon the original process, annulled and reversed, and the writ of Habere facias possessionem, which issued thereon and all proceedings in pursuance thereof, null and void, and expressly directs other parties, not named in the original process, to be parties therein. That the said Hannah, if she had the right she claims, had and still has her remedy in the regular and common course of law,—the parties being fully heard thereon, It is therefore, upon mature consideration and advisement, considered by the court here, that they will take no further cognizance of this action in consequence of said resolves’ Per Curiam.

The acts of a state legislature may therefore be void, either because they are contrary to the constitution of the United States, or to some treaty or act of congress, made under its authority. See 5 Cranch, 344. 7 Cranch, 164. 4 Wheaton, 316. As, if a state should attempt to regulate foreign commerce, or, to lay a tax on imports or exports. See 9 Wheat. 201, 209. 12 Wheat. 419. So, if an act of a state legislature, should tend to hinder, or burden, or control the operation of any constitutional law enacted by congress.

So, if a state legislature should enact a law, without having any authority under the state constitution, and especially if contrary to any prohibition contained either in it, or in the bill of rights. The restrictions, upon the Powers of the States will be further considered under Chapter VI.

And here a question may arise of great importance and deep interest to the United States, as well as to each of the several states. As the constitution of the United States is a compact, by which the citizens of the United States have delegated to their rulers certain limited powers, and have made an express reservation, either to the states or to the people, of all powers not delegated in it; suppose one of the states, or a private individual should be of opinion, that congress had transcended its legitimate authority, and enacted an unconstitutional law; what remedy can be had?

States-RightsIt has been seen before, that an unconstitutional law, whether enacted by congress or by a state legislature, is equally void, because it is an infringement of the national compact. If the officers of the federal government or of the state government, should attempt to enforce it, any private individual injured by it, might bring his action and have the question of the constitutionality of the law settled in the last resort, before the supreme court of the United States. If the law were decided to be constitutional, there would be an end of the question, so far as concerns any private individual. But, if the law of congress had a particular bearing on the interest or policy of one or more of the states, which considered the law as not authorized by any powers, really intended to be granted to congress by the federal constitution, however it might seem to be included within them by the generality of the terms made use of to express those powers, any such state or states, without being driven to the necessity of impugning the correctness of the decision, and without having recourse to the rash and treasonable attempt of forcibly opposing the law, or the decree of the supreme court grounded on it, might justifiably adopt the following course of measures, if thought expedient; viz.

1. They might send a remonstrance to congress, alluding to the decision of the supreme court, and stating, that though the question of the constitutionality of the law, might be considered as so far settled in the affirmative, in a technical sense, that it must be considered as the law of the land and obeyed as such, until repealed; yet, they did not consider such law, as coming, in fact, within the real intention of the parties to the constitution. They might then state their objections to it, and show the inequality of its operation, or in what manner it tended to sacrifice the interests of the states complaining, either to that of the United States, or, in favor of some one or more particular states, or, in general point out in what respect it was unconstitutional. They might conclude with requesting a repeal of the law, or a modification of it in those offensive particulars. If the offensive law were not repealed or modified;—

2. They might appeal to the states; i. e. either to the respective states, or to the respective state governments, both or either, as might be thought expedient, stating the whole case, and all the public proceedings, which had taken place in relation to it. They might also state the injury or injustice, which they and their interests suffered in consequence of the operation of the law. They might then request the citizens, to instruct their representatives in congress, by a declaration in convention, to endeavor to procure a repeal of the law. They might also call on the state legislatures, to declare, what in their opinion the true construction of the constitution of the United States, in relation to the offensive law, ought to be. If the law were not repealed, or, if an opinion favorable to its constitutionality were expressed;—

3. They might send a second remonstrance directed to congress, another similar one directed to the legislatures of the several states, and a third of the same import, addressed to the citizens of each of the states collectively, as members or constituent parts of the Union. This remonstrance might contain in substance, that, though under a strict construction of the constitution, it might perhaps be considered, that congress had a power to pass the law complained of; yet, in fact, it never was in the contemplation of the states remonstrating, to grant congress any such power; that the exercise of it was injurious to them, and that they therefore requested the constitution might be so amended, as to restrain the exercise of such power for the time to come. If this application also failed of obtaining the desired object;—

Lastly : They might send a remonstrance addressed to the respective states, as well as to the citizens of the United States, as forming collectively one great nation. In this remonstrance they might state, that, when the constitution of the United States was adopted, the states remonstrating did not intend to enter into such a compact, as that national agreement had been construed to contain; that, under this instrument laws had been enacted, which were subversive of their interests, and unauthorized by any power which they had intended to grant by that compact; that they had made application for redress, in every mode which could reasonably be expected of them, but in vain; that the union, therefore, had not been attended with all the advantages, which they had contemplated in adopting it; and, on the contrary, some evils had resulted to them from it, which more than counterbalanced all the benefit which they had derived from it, or could expect from a continuance of their connexion with the union; and that therefore, they requested the consent of their brethren, associates, and fellow citizens, that they, the remonstrants, might peaceably withdraw themselves from the union. Further than this, it is not thought worth while to carry the supposition, because it is hoped, that such extraordinary folly will never be found either in the people of the United States, or, in the people of any state ; or, in those delegates or representatives, to whom the people of either government may intrust the decision of this momentous question, as to dissolve the union on any such account. * * * *

Having skipped the crimson page, which might naturally be expected here, since, let the attempt at separation be commenced how it may, there is but little hope, that it will ever be effected without bloodshed; suppose the union to be dissolved, and that the calm of peace has at length succeeded, what will become of the fame and renown of those distinguished statesmen, who framed, and persuaded the people of the United States to adopt, the present admirable system of general government? certainly, if this attempt to induce men to govern themselves by laws grounded on the dictates of reason, religion and virtue, should prove unsuccessful, the foundation upon which the reputation of those politicians for wisdom, is grounded, will be swept away by torrents of vice and corruption; and the names of most of those who have been flattered by holiday orators, that their glory would be imperishable, will be effaced from the columns of time, before this century has passed away. But, what is this in comparison with the degraded and imbecile state, to which this now great and flourishing republic will infallibly be reduced?

Two other questions naturally suggest themselves here.

1. If a law should be passed by congress, or any other public measure be adopted by the federal government, injurious to the interests of a particular state, and which should be decided by the supreme court of the United States to be constitutional, does the right, which the state has of adopting the course of remonstrance, just considered, belong to the government of the state or to the people of the state;—to the rulers, or, to the citizens?

The answer obviously must be, that, since, agreeably to the constitution of the United States, all rights, not delegated in it, are reserved to the states, or to’ the people, the determination of this question will depend upon the respective state constitutions. For, if the people of any state have given this superintending power to their state rulers in their constitution, those rulers will have the right to interpose, in the cases and in the manner before suggested and to that extent, but no further, between the general government and the people of their state. For, that such a power may be delegated by the citizens of each state, to their state rulers in general, or to the legislative, or the executive, or the judicial department singly, cannot be doubted. But, unless this power is thus expressly delegated, it must remain in the citizens; and, in that case, the interference of the state government itself, in its political capacity, will be a mere usurpation of illegal authority. It will not be denied, however, that, if the legislature of any state, should feel convinced that a law injurious to the interests of the state, and not warranted by the federal constitution, or the real intention of those who adopted it, had been enacted by congress, they would be bound to make it known to the people of the state, so that all proper measures might be adopted to procure its repeal. But, further than this, the state governments cannot constitutionally proceed, without authority from their citizens. For, within the powers delegated in the federal constitution, the government of the United states is the government, not only of all the states taken collectively, as one great nation; but, also is the government of each state taken separately; in the same manner, that within the powers delegated in the state constitutions, the state governments have the sovereign control of the affairs of the respective states, provided they do no act inconsistent with the federal constitution. But, neither the federal government, nor any of the state governments can justly transcend their assigned limits.

On examination of the state constitutions, however, it is believed, that no such power will be found to be given to the state governments, either expressly or by necessary implication, to interpose between the federal government and the citizens of any of the states; indeed, there would seem to be a manifest impropriety in intrusting any such power to them, if it is considered in what manner the state governments are organized. For, as the governor, as well as the members of the state legislatures, are chosen for short periods only, there could be but little dependance placed upon the permanence of any measures which, in an emergency of this nature, they might see fit to adopt; since however wise, firm and consistent the characters of the rulers may be, the administration of public affairs in popular governments, will always fluctuate, more or less according to the frequency of elections, with the changes of popular opinions. Because, a change in the public sentiment will immediately remove from office, all those individuals, whose offices are elective, and who are not pliant enough to accommodate their professions to the doctrines of the times ; and will put in their place, persons entertaining different opinions, and who consequently will adopt a different course of public measures. Besides, though the individuals usually selected for the public service, may be esteemed by the people, well qualified to answer the ordinary occasions of the public, by enacting the necessary laws for the regulation of the internal affairs of the state, and in the exercise of the powers conferred on the state governments in the state constitutions; yet, it is not at all unlikely, that, for the more important occasions of altering the slate constitution itself,—for the momentous crisis of assuming a new attitude with regard to the federal government, as well as an unexpected relation to the other states, the citizens of a state would think it expedient to call upon the highest abilities within their reach, for assistance: because nothing less would be thought adequate to direct them in any so dangerous a conjuncture.

Further; though aspiring men, even in the highest offices of the stale administration, if restricted to the exercise of the powers conferred on them by the state constitution, would have but little opportunity of disturbing the tranquility of society, in the common course of affairs; yet, if any power were conferred on such persons by the people, or, if they were permitted to usurp a power, to interfere in the manner before suggested, or, in any other manner between the government of the United States and the citizens of their own state, the most dangerous consequences might ensue. Because the strong desire, which such persons always have, to distinguish themselves in the eyes of the citizens of their own state, might prompt them to seize upon every pretense to rail against the general government; and, as far as inflammatory harangues, seditious and turbulent resolves, messages and addresses would go, to set it at defiance; and, in the improbable yet possible case of an actual encroachment upon some of the rights of the state, instead of adopting the wise and magnanimous course of friendly expostulation and remonstrance, thus giving the general government an opportunity of retracing its steps and redressing the grievance, if there were one, would gladly avail themselves of any such occasion, and from motives of selfish aggrandizement would be tempted to raise the standard of hostility, in the rash and unprincipled attempt to dissolve the union by force. Yet, what could they hope to gain by any such attempt? Certainly, the most probable consequence would be, that, though they might bring upon their own state the illimitable horrors of intestine war, they would ultimately be compelled to submit to reasonable terms of compromise, and observe the national compact to which all have agreed.

It would be desirable, without doubt, that the power, now under consideration, should be confided to the governor and the members of both houses of the legislature of the respective states, if their term of office were longer, so that there would be less reason to distrust the consistency as well as permanence of their public measures; because, they then would become the guardians and protectors of the rights of the states against the encroachments, not of the general government, for of this there is hardly a possibility, but of the legislative department of it. If then, congress should enact a law, which the authorities of a state considered to be unconstitutional and injurious to the interests of the state, those state rulers would immediately take care to have the question of its constitutionality determined by the supreme court of the United States; and, if aggrieved by their decision, would adopt the regular course before suggested, so far as was just and expedient, without the necessity of convening primary assemblies of the people, a measure seldom desirable, or in any manner disturbing the tranquility of the public mind. The supposition indeed is possible, though perhaps it would be better to consider it impossible, that there might be a final difference of opinion as to interests, which are believed to be of sufficient consequence, to demand for their preservation, the dissolution or dismemberment of the union. But, as it seems really impossible, that a necessity for adopting a measure so fatal to the strength and prosperity of this now great and flourishing nation, should ever arise from any other cause than the selfish or angry passions of the leaders and partisans of the various parties or factions, which already distract the country; if the people of the United States, or those of either of the several states, ever have recourse to this miserable alternative, they will have nothing to which to ascribe the loss of the happiness,, which, if they choose, they may enjoy under their complicated but admirable system of government, and the total decline of their rank among the nations of the earth, but their infatuation, their ignorance of their true interests, their misplaced confidence in superficial orators and selfish statesmen, and their weak concessions to rude importunity and senseless clamor.

2. It may be asked; are there really no limits to the jurisdiction of the supreme court of the United States, with regard to what are generally considered as constitutional questions? The answer must be, that, in one respect, there are limits, but in another, there are none. It would seem, that congress must always be bound by a decision of the supreme court of the United States; but the states are not always bound. If the supreme court should decide, that a law is unconstitutional, congress must always be bound by the decision, because the authority of that court to decide upon the constitutionality of all laws enacted by congress, proceeds from the same source from which congress derives all its authority to enact laws. They therefore cannot deny the authority of the court, in this respect, without removing the foundation of their own powers. But with regard to the states, the case is different. For, the states have delegated to the government of the United States certain limited powers only, and, for the purpose of providing a check upon the rulers to prevent their overstepping the limits prescribed to them, have erected the supreme court to decide, in the last resort, whether they exceed their powers or not. If therefore the supreme court should decide that any measure of the government of the United States is unconstitutional, it would be considered from that moment illegal and void, and the general government would be bound by the decision. But, if the supreme court should decide that the measure is constitutional, a further question may arise, which is, whether the point decided, comes within the jurisdiction of that court as limited in the constitution of the United States; for, if it does not, the decision of the court will not bind the states. In order that the supreme court should have jurisdiction in relation to a particular subject, it must either be conferred in the constitution in express terms, or it must be necessary to the exercise of some authority expressly delegated in the constitution. In either case, there would seem to be but little question as to the jurisdiction of the court. But, the supreme court must have jurisdiction conferred on them in the constitution, over the subject matter involved in their decision. If they have not, their decision, though obligatory on the national government, when given against them, because this court always has authority to decide that a measure, purporting to be adopted under the authority of the constitution, is in fact unconstitutional; yet, if given in favor of the general government and against the states, will not be binding. It is true, within the jurisdiction conferred by the constitution, every decision of the supreme court, must be submitted to by the states, since, by adopting the federal constitution they have agreed to do so; and, on the improbable supposition, that the court should make an incorrect decision, in fact, still it must be considered as correct, and obeyed as such, there being no higher court of appeal provided by the constitution. But, how can the states be bound by the decisions of the supreme court, on the supposition that they should usurp jurisdiction over matters not submitted to them by the states, in the federal constitution? If it is asked;—how can it be ascertained, whether such jurisdiction is granted in the constitution, or not, otherwise than by the construction given to it by the supreme court, and which they alone are authorized to decide in the last resort; the answer must be, that the question, whether a certain jurisdiction is conferred in the constitution, or not, must be determined by a reference to the constitution itself. This subject is not left to the mere discretion of the court. For, as this court can neither extend its jurisdiction beyond the express limits prescribed to it; so neither can it assume jurisdiction in cases where the constitution is silent. It can never depend upon mere construction. For, where the constitution is entirely silent in relation to a particular subject, and where the powers delegated to the supreme court can be exercised without giving authority or jurisdiction in relation to that subject, it must be self-evident, that the supreme court can have no constitutional jurisdiction. It is no small argument of the excellence and wisdom of the provisions in the constitution, that, in order to find cases not provided for in it, recourse must be had so frequently to absurd or at least very improbable suppositions. Let it be supposed then for a moment, that the supreme court should assume jurisdiction of a suit, commenced by a citizen of a state against another state, and that the court should decree against the state sued, can it be imagined, that the state would be bound to submit to the decree? Certainly not; because one of the amendments to the constitution of the United States, expressly provides, that the judicial power of the federal government shall not extend to such a case. Suppose again, that this court should entertain jurisdiction on a prosecution for a crime, committed within a state and against the laws of the state alone, would not any judgment which this court might pronounce in this case, be wholly void? No one can be so unreasonable as to believe, that the extent of delegated powers, can depend upon the construction of the delegate alone. No one can be so absurd as to imagine, that the limited jurisdiction of any court, however high, can be extended by the mere construction of the court itself. This subject will be farther examined in a different connexion, in the next chapter.

See the other parts of this series:
RIGHTS OF AMERICAN CITIZENS: General Rights; Division One
RIGHTS OF AMERICAN CITIZENS: General Rights; Division Two
RIGHTS OF AMERICAN CITIZENS: General Rights; The Social Compact
RIGHTS OF AMERICAN CITIZENS: The Powers delegated to the General Government in the Federal Constitution
RIGHTS OF AMERICAN CITIZENS: Powers delegated to the State Governments
RIGHTS OF AMERICAN CITIZENS: The Independence of the States
RIGHTS OF AMERICAN CITIZENS: The rights reserved to the people of the United States
RIGHTS OF AMERICAN CITIZENS: Of the right of suffrage and of elections
RIGHTS OF AMERICAN CITIZENS: The Liberty of Speech and of the Press
RIGHTS OF AMERICAN CITIZENS: The Power of Courts to punish for Contempts
RIGHTS OF AMERICAN CITIZENS: The Law of Libel in relation to Public Officers
RIGHTS OF AMERICAN CITIZENS: The mode of obtaining redress for infringement of civil or political rights