Patrick Henry and the Battle in Virginia Over the Constitution

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THE BATTLE IN VIRGINIA OVER THE CONSTITUTION

The great convention at Philadelphia, after a session of four months, came to the end of its noble labors on the 17th of September, 1787. Washington, who had been not merely its presiding officer but its presiding genius, then hastened back to Mt. Vernon, and, in his great anxiety to win over to the new Constitution the support of his old friend Patrick Henry, he immediately dispatched to him a copy of that instrument, accompanied by a very impressive and conciliatory letter,1 to which, about three weeks afterwards, was returned the following reply: —

Richmond, October 19,1787.

Dear Sir, — I was honored by the receipt of your favor, together with a copy of the proposed federal Constitution, a few days ago, for which I beg you to accept my thanks. They are also due to you from me as a citizen, on account of the great fatigue necessarily attending the arduous business of the late convention.

I have to lament that I cannot bring my mind to accord with the proposed Constitution. The concern I [Writings of Washington, ix. 265-266] feel on this account is really greater than I am able to express. Perhaps mature reflections may furnish me with reasons to change my present sentiments into a conformity with the opinions of those personages for whom I have the highest reverence. Be that as it may, I beg you will be persuaded of the unalterable regard and attachment with which I shall be,

Dear Sir, your obliged and very humble servant,

P. HENRY

Four days before the date of this letter the legislature of Virginia had convened at Richmond for its autumn session, and Patrick Henry had there taken his usual place on the most important committees, and as the virtual director of the thought and work of the House. Much solicitude was felt concerning the course which he might advise the legislature to adopt on the supreme question then before the country, — some persons even fearing that he might try to defeat the new Constitution in Virginia by simply preventing the call of a state convention. Great was Washington’s satisfaction on receiving from one of his correspondents in the Assembly, shortly after the session began, this cheerful report: —

“I have not met with one in all my inquiries (and I have made them with great diligence) opposed to it, except Mr. Henry, who I have heard is so, but could only conjecture it from a conversation with him on the subject. . . . The transmissory note of Congress was before us to-day, when Mr. Henry declared that it transcended our powers to decide on the Constitution, and that it must go before a convention. As it was insinuated he would aim at preventing this, much pleasure was discovered at the declaration.” [Writings of Washington, ix. 273]

On the 24th of October, from his place in Congress, Madison sent over to Jefferson, in Paris, a full account of the results of the Philadelphia convention, and of the public feeling with reference to its work: “My information from Virginia is as yet extremely imperfect. . . The part which Mr. Henry will take is unknown here. Much will depend on it. I had taken it for granted, from a variety of circumstances, that he would be in the opposition, and still think that will be the case. There are reports, however, which favor a contrary supposition.” [Madison, Letters, etc. i. 356] But, by the 9th of December, Madison was able to send to Jefferson a further report, which indicated that all doubt respecting the hostile attitude of Patrick Henry was then removed. After mentioning that a majority of the people of Virginia seemed to be in favor of the Constitution, he added: “What change may be produced by the united influence and exertions of Mr. Henry, Mr. Mason, and the governor, with some pretty able auxiliaries, is uncertain. . . . Mr. Henry is the great adversary who will render the event precarious. He is, I find, with his usual address, working up every possible interest into a spirit of opposition.” [Ibid. i. 364-365]

Long before the date last mentioned, the legislature had regularly declared for a state convention, to be held at Richmond on the first Monday in June, 1788, then and there to determine whether or not Virginia would accept the new Constitution. In view of that event, delegates were in the mean time to be chosen by the people; and thus, for the intervening months, the fight was to be transferred to the arena of popular debate. In such a contest Patrick Henry, being once aroused, was not likely to take a languid or a hesitating part; and of the importance then attached to the part which he did take, we catch frequent glimpses in the correspondence of the period. Thus, on the 19th of February, 1788, Madison, still at New York, sent this word to Jefferson: “The temper of Virginia, as far as I can learn, has undergone but little change of late. At first, there was an enthusiasm for the Constitution. The tide next took a sudden and strong turn in the opposite direction. The influence and exertions of Mr. Henry, Colonel Mason, and some others, will account for this. … I am told that a very bold language is held by Mr. Henry and some of his partisans.” [Madison, Letters, i. 388] On the 10th of April, Madison, then returned to his home in Virginia, wrote to Edmund Randolph: “The declaration of Henry, mentioned in your letter, is a proof to me that desperate measures will be his game.” [Ibid. I 387] On the 22d of the same month Madison wrote to Jefferson: “The adversaries take very different grounds of opposition. Some are opposed to the substance of the plan; others, to particular modifications only. Mr. Henry is supposed to aim at disunion.” [Madison, Letters, i. 388]On the 24th of April, Edward Carrington, writing from New York, told Jefferson: “Mr. H. does not openly declare for a dismemberment of the Union, but his arguments in support of his opposition to the Constitution go directly to that issue. He says that three confederacies would be practicable, and better suited to the good of commerce than one.” [Bancroft, Hist. Const, ii. 465] On the 28th of April, Washington wrote to Lafayette on account of the struggle then going forward; and after naming some of the leading champions of the Constitution, he adds sorrowfully: “Henry and Mason are its great adversaries.” [Writings of Washington, ix. 356] Finally, as late as on the 12th of June, the Rev. John Blair Smith, at that time president of Hampden-Sidney College, conveyed to Madison, an old college friend, his own deep disapproval of the course which had been pursued by Patrick Henry in the management of the canvass against the Constitution: —

“Before the Constitution appeared, the minds of the people were artfully prepared against it; so that all opposition [to Mr. Henry] at the election of delegates to consider it, was in vain. That gentleman has descended to lower artifices and management on the occasion than I thought him capable of. … If Mr. Innes has shown you a speech of Mr. Henry to his constituents, which I sent him, you will see something of the method he has taken to diffuse his poison. … It grieves me to see such great natural talents abused to such purposes.” [Rives, Life of Madison, ii. 544, note.]

On Monday, the 2d of June, 1788, the long expected convention assembled at Richmond. So great was the public interest in the event that a full delegation was present, even on the first day; and in order to make room for the throngs of citizens from all parts of Virginia and from other States, who had flocked thither to witness the impending battle, it was decided that the convention should hold its meetings in the New Academy, on Shockoe Hill, the largest assembly-room in the city.

Eight States had already adopted the Constitution. The five States which had yet to act upon the question were New Hampshire, Rhode Island, New York, North Carolina, and Virginia. For every reason, the course then to be taken by Virginia would have great consequences. Moreover, since the days of the struggle over independence, no question had so profoundly moved the people of Virginia; none had aroused such hopes and such fears; none had so absorbed the thoughts, or so embittered the relations of men. It is not strange, therefore, that this convention, consisting of one hundred and seventy members, should have been thought to represent, to an unusual degree, the intelligence, the character, the experience, the reputation of the State. Perhaps it would be true to say that, excepting Washington, Jefferson, and Richard Henry Lee, no Virginian of eminence was absent from it.

Furthermore, the line of division, which from the outset parted into two hostile sections these one hundred and seventy Virginians, was something quite unparalleled. In other States it had been noted that the conservative classes, the men of education and of property, of high office, of high social and professional standing, were nearly all on the side of the new Constitution. Such was not the case in Virginia. Of the conservative classes throughout that State, quite as many were against the new Constitution as were in favor of it. Of the four distinguished citizens who had been its governors, since Virginia had assumed the right to elect governors, — Patrick Henry, Jefferson, Nelson, and Harrison, — each in turn had denounced the measure as unsatisfactory and dangerous; while Edmund Randolph, the governor then in office, having attended the great convention at Philadelphia, and having there refused to sign the Constitution, had published an impressive statement of his objections to it, and, for several months thereafter, had been counted among its most formidable opponents. Concerning the attitude of the legal profession, — a profession always inclined to conservatism, — Madison had written to Jefferson: “The general and admiralty courts, with most of the bar, oppose the Constitution.” [Rives, Life of Madison, ii. 541] Finally, among Virginians who were at that time particularly honored and trusted for patriotic services during the Revolution, such men as these, Theodoric Bland, William Grayson, John Tyler, Meriwether Smith, James Monroe, George Mason, and Richard Henry Lee, had declared their disapproval of the document.

Nevertheless, within the convention itself, at the opening of the session, it was claimed by the friends of the new government that they then outnumbered their opponents by at least fifty votes. [Hist. Mag. for 1873, 274] Their great champion in debate was James Madison, who was powerfully assisted, first or last, by Edmund Pendleton, John Marshall, George Nicholas, Francis Corbin, George Wythe, James Innes, General Henry Lee, and especially by that same Governor Randolph who, after denouncing the Constitution for “features so odious” that he could not “agree to it,” [Elliot, Debates, i. 491; v. 502,534-535] had finally swung completely around to its support.

Against all this array of genius, learning, character, logical acumen, and eloquence, Patrick Henry held the field as protagonist for twenty-three days, — his chief lieutenants in the fight being Mason, Grayson, and John Dawson, with occasional help from Harrison, Monroe, and Tyler. Upon him alone fell the brunt of the battle. Out of the twenty-three days of that splendid tourney, there were but five days in which he did not take the floor. On each of several days he made three speeches; on one day he made five speeches; on another day eight. In one speech alone, he was on his legs for seven hours. The words of all who had any share in that debate were taken down, according to the imperfect art of the time, by the stenographer, David Robertson, whose reports, however, are said to be little more than a pretty full outline of the speeches actually made: but in the volume which contains these abstracts, one of Patrick Henry’s speeches fills eight pages, another ten pages, another sixteen, another twenty-one, another forty; while, in the aggregate, his speeches constitute nearly one quarter of the entire book, — a book of six hundred and sixty-three pages. [Elliot, Debates, iii]

Any one who has fallen under the impression, so industriously propagated by the ingenious enmity of Jefferson’s old age, that Patrick Henry was a man of but meagre information and of extremely slender intellectual resources, ignorant especially of law, of political science, and of history, totally lacking in logical power and in precision of statement, with nothing to offset these deficiencies excepting a strange gift of overpowering, dithyrambic [wildly enthusiastic] eloquence, will find it hard, as he turns over the leaves on which are recorded the debates of the Virginia convention, to understand just how such a person could have made the speeches which are there attributed to Patrick Henry, or how a mere rhapsodist could have thus held his ground, in close hand-to-hand combat, for twenty-three days, against such antagonists, on all the difficult subjects of law, political science, and history involved in the Constitution of the United States, — while showing at the same time every quality of good generalship as a tactician and as a party leader. “There has been, I am aware,” says an eminent historian of the Constitution,” a modern scepticism concerning Patrick Henry’s abilities; but I cannot share it. . . . The manner in which he carried on the opposition to the Constitution in the convention of Virginia, for nearly a whole month, shows that he possessed other powers besides those of great natural eloquence.”[Curtis, Hist. Const. ii. 561, note.]

But, now, what were Patrick Henry’s objections to the new Constitution?

First of all, let it be noted that his objections did not spring from any hostility to the union of the thirteen States, or from any preference for a separate union of the Southern States. Undoubtedly there had been a time, especially under the provocations connected with the Mississippi business, when he and many other Southern statesmen sincerely thought that there might be no security for their interests even under the Confederation, and that this lack of security would be even more glaring and disastrous under the new Constitution. Such, for example, seems to have been the opinion of Governor Benjamin Harrison, as late as October the 4th, 1787, on which date he thus wrote to Washington: “I cannot divest myself of an opinion that … if the Constitution is carried into effect, the States south of the Potomac will be little more than appendages to those to the north-‘ward of it.” [Writings of Washington, ix. 266, note]It is very probable that this sentence accurately reflects, likewise, Patrick Henry’s mood of thought at that time. Nevertheless, whatever may have been his thought under the sectional suspicions and alarms of the preceding months, it is certain that, at the date of the Virginia convention, he had come to see that the thirteen States must, by all means, try to keep together. “I am persuaded,” said he, in reply to Randolph, “of what the honorable gentleman says, ‘ that separate confederacies will ruin us.'” “Sir,” he exclaimed on another occasion, “the dissolution of the Union is most abhorrent to my mind. The first thing I have at heart is American liberty; the second thing is American union.” Again he protested: “I mean not to breathe the spirit, nor utter the language, of secession.” [Elliot, Debates, iii. 161, 57, 63]

In the second place, he admitted that there were great defects in the old Confederation, and that those defects ought to be cured by proper amendments, particularly in the direction of greater strength to the federal government. But did the proposed Constitution embody such amendments? On the contrary, that Constitution, instead of properly amending the old Confederation, simply annihilated it, and replaced it by something radically different and radically dangerous.

“The federal convention ought to have amended the old system; for this purpose they were solely delegated; the object of their mission extended to no other consideration.” “The distinction between a national government and a confederacy is not sufficiently discerned. Had the delegates who were sent to Philadelphia a power to propose a consolidated government, instead of a confederacy?” “Here is a resolution as radical as that which separated us from Great Britain. It is radical in this transition; our rights and privileges are endangered, and the sovereignty of the States will be relinquished: and cannot we plainly see that this is actually the case? The rights of conscience, trial by jury, liberty of the press, all your immunities and franchises, all pretensions to human rights and privileges, are rendered insecure, if not lost, by this change, so loudly talked of by some, so inconsiderately by others.” “A number of characters, of the greatest eminence in this country, object to this government for its consolidating tendency. This is not imaginary. It is a formidable reality. If consolidation proves to be as mischievous to this country as it has been to other countries, what will the poor inhabitants of this country do? This government will operate like an ambuscade. It will destroy the state governments, and swallow the liberties of the people, without giving previous notice. If gentlemen are willing to run the hazard, let them run it; but I shall exculpate myself by my opposition and monitory warnings within these walls.” [Elliot, Debates, iii. 23, 52, 44, 156]

But, in the third place, besides transforming the old confederacy into a centralized and densely consolidated government, and clothing that government with enormous powers over States and over individuals, what had this new Constitution provided for the protection of States and of individuals? Almost nothing. It had created a new and a tremendous power over us; it had failed to cover us with any shield, or to interpose any barrier, by which, in case of need, we might save ourselves from the wanton and fatal exercise of that power. In short, the new Constitution had no bill of rights. But “a bill of rights,” he declared, is “indispensably necessary.”

“A general positive provision should be inserted in the new system, securing to the States and the people every right which was not conceded to the general government.” “I trust that gentlemen, on this occasion, will see the great objects of religion, liberty of the press, trial by jury, interdiction of cruel punishments, and every other sacred right, secured, before they agree to that paper.” “Mr. Chairman, the necessity of a bill of rights appears to me to be greater in this government than ever it was in any government before. I have observed already that the sense of European nations, and particularly Great Britain, is against the construction of rights being retained which are not expressly relinquished. I repeat, that all nations have adopted the construction, that all rights not expressly and unequivocally reserved to the people are impliedly and incidentally relinquished to rulers, as necessarily inseparable from delegated powers. . . . Let us consider the sentiments which have been entertained by the people of America on this subject. At the Revolution, it must be admitted that it was their sense to set down those great rights which ought, in all countries, to be held inviolable and sacred. Virginia did so, we all remember. She made a compact to reserve, expressly, certain rights. . . . She most cautiously and guardedly reserved and secured those invaluable, inestimable rights and privileges which no people, inspired with the least glow of patriotic liberty, ever did, or ever can, abandon. She is called upon now to abandon them, and dissolve that compact which secured them to her. . . . Will she do it? This is the question. If you intend to reserve your unalienable rights, you must have the most express stipulation; for, if implication be allowed, you are ousted of those rights. If the people do not think it necessary to reserve them, they will be supposed to be given up. . . . If you give up these powers, without a bill of rights, you will exhibit the most absurd thing to mankind that ever the world saw, — a government that has abandoned all its powers, — the powers of direct taxation, the sword, and the purse. You have disposed of them to Congress, without a bill of rights, without check, limitation, or control. And still you have checks and guards; still you keep barriers — pointed where? Pointed against your weakened, prostrated, enervated, state government! You have a bill of rights to defend you against the state government— which is bereaved of all power, and yet you have none against Congress — though in full and exclusive possession of all power. You arm yourselves against the weak and defenceless, and expose yourselves naked to the armed and powerful. Is not this a conduct of unexampled absurdity?” [Elliot, Debates, iii. 150, 462, 445-446]

Again and again, in response to his demand for an express assertion, in the instrument itself, of the rights of individuals and of States, he was told that every one of those rights was secured, since it was naturally and fairly implied. “Even say,” he rejoined, “it is a natural implication, — why not give us a right … in express terms, in language that could not admit of evasions or subterfuges? If they can use implication for us, they can also use implication against us. We are giving power; they are getting power; judge, then, on which side the implication will be used.” “Implication is dangerous, because it is unbounded; if it be admitted at all, and no limits prescribed, it admits of the utmost extension.” “The existence of powers is sufficiently established. If we trust our dearest rights to implication, we shall be in a very unhappy situation.” [Elliot, Debates, in. 149-150]

Then, in addition to his objections to the general character of the Constitution, namely, as a consolidated government, unrestrained by an express guarantee of rights, he applied his criticisms in great detail, and with merciless rigor, to each department of the proposed government, — the legislative, the executive, and the judicial; and with respect to each one of these he insisted that its intended functions were such as to inspire distrust and alarm. Of course, we cannot here follow this fierce critic of the Constitution into all the detail of his criticisms; but, as a single example, we may cite a portion of his assault upon ‘the executive department, — an assault, as will be seen, far better suited to the political apprehensions of his own time than of ours: —

“The Constitution is said to have beautiful features; but when I come to examine these features, sir, they appear to me horribly frightful. Among other deformities, it has an awful squinting; it squints towards monarchy. And does not this raise indignation in the breast of every true American? Your president may easily become king. . . . Where are your checks in this government? Your strongholds will be in the hands of your enemies. It is on a supposition that your American governors shall be honest, that all the good qualities of this government are founded; but its defective and imperfect construction puts it in their power to perpetrate the worst of mischiefs, should they be bad men. And, sir, would not all the world, from the eastern to the western hemispheres, blame our distracted folly in resting our rights upon the contingency of our rulers being good or bad? Show me that age and country where the rights and liberties of the people were placed on the sole chance of their rulers being good men, without a consequent loss of liberty. … If your American chief be a man of ambition and abilities, how easy is it for him to render himself absolute! The army is in his hands; and if he be a man of address, it will be attached to him, and it will be the subject of long meditation with him to seize the first auspicious moment to accomplish his design. And, sir, will the American spirit solely relieve you when this happens? I would rather infinitely — and I am sure most of this convention are of the same opinion — have a king, lords, and commons, than a government so replete with such insupportable evils. If we make a king, we may prescribe the rules by which he shall rule his people, and interpose such checks as shall prevent him from infringing them; but the president, in the field, at the head of his army, can prescribe the terms on which he shall reign master, so far that it will puzzle any American ever to get his neck from under the galling yoke. . . . Will not the recollection of his crimes teach him to make one bold push for the American throne? Will not the immense difference between being master of everything, and being ignominiously tried and punished, powerfully excite him to make this bold push? But, sir, where is the existing force to punish him? Can he not, at the head of his army, beat down every opposition? Away with your president! we shall have a king. The army will salute him monarch. Your militia will leave you, and assist in making him king, and fight against you. And what have you to oppose this force? What will then become of you and your rights? Will not absolute despotism ensue?” [Elliot, Debates, iii. 58-60]

Without reproducing here, in further detail, Patrick Henry’s objections to the new Constitution, it may now be stated that they all sprang from a single idea, and all revolved about that idea, namely, that the new plan of government, as it then stood, seriously endangered the rights and liberties of the people of the several States. And in holding this opinion he was not at all peculiar. Very many of the ablest and noblest statesmen of the time shared it with him. Not to name again his chief associates in Virginia, nor to cite the language of such men as Burke and Rawlins Lowndes, of South Carolina; as Timothy Bloodworth, of North Carolina; as Samuel Chase and Luther Martin, of Maryland; as George Clinton, of New York; as Samuel Adams, John Hancock, and Elbridge Gerry, of Massachusetts; as Joshua Atherton, of New Hampshire, it may sufficiently put us into the tone of contemporary opinion upon the subject, to recall certain grave words of Jefferson, who, watching the whole scene from the calm distance of Paris, thus wrote on the 2d of February, 1788, to an American friend: —

“I own it astonishes me to find such a change wrought in the opinions of our countrymen since I left them, as that three fourths of them should be contented to live under a system which leaves to their governors the power of taking from them the trial by jury in civil cases, freedom of religion, freedom of the press, freedom of commerce, the habeas corpus laws, and of yoking them with a standing army. That is a degeneracy in the principles of liberty, to which I had given four centuries, instead of four years.” [Bancroft, Hist. Const. ii 45&-460]

Holding such objections to the proposed Constitution, what were Patrick Henry and his associates in the Virginia convention to do? Were they to reject the measure outright? Admitting that it had some good features, they yet thought that the best course to be taken by Virginia would be to remit the whole subject to a new convention of the States, — a convention which, being summoned after a year or more of intense and universal discussion, would thus represent the later, the more definite, and the more enlightened desires of the American people. But despairing of this, Patrick Henry and his friends concentrated all their forces upon this single and clear line of policy: so to press their objections to the Constitution as to induce the convention, not to reject it, but to postpone its adoption until they could refer to the other States in the American confederacy the following momentous proposition, namely, “a declaration of rights, asserting, and securing from encroachment, the great principles of civil and religious liberty, and the undeniable rights of the people, together with amendments to the most exceptionable parts of the said constitution of government.” [Elliot, Debates, iii. 653]

Such, then, was the real question over which in that assemblage, from the first day to the last, the battle raged. The result of the battle was reached on Wednesday, the 25th of June; and that result was a victory for immediate adoption, but by a majority of only ten votes, instead of the fifty votes that were claimed for it at the beginning of the session. Moreover, even that small majority for immediate adoption was obtained only by the help, first, of a preamble solemnly affirming it to be the understanding of Virginia in this act that it retained every power not expressly granted to the general government; and, secondly, of a subsidiary resolution promising to recommend to Congress “whatsoever amendments may be deemed necessary.”

Just before the decisive question was put, Patrick Henry, knowing that the result would be against him, and knowing, also, from the angry things uttered within that House and outside of it, that much solicitude was abroad respecting the course likely to be taken by the defeated party, then and there spoke these noble words: —

“I beg pardon of this House for having taken up more time than came to my share, and I thank them for the patience and polite attention with which I have been heard. If I shall be in the minority, I shall have those painful sensations which arise from a conviction of being overpowered in a good cause. Yet I will be a peaceable citizen. My head, my hand, and my heart shall be at liberty to retrieve the loss of liberty, and remove the defects of that system in a constitutional way. I wish not to go to violence, but will wait, with hopes that the spirit which predominated in the Revolution is not yet gone, nor the cause of those who are attached to the Revolution yet lost. I shall therefore patiently wait in expectation of seeing that government changed, so as to be compatible with the safety, liberty, and happiness of the people.” [Elliot, Debates, iii. 652]

Those words of the great Virginian leader proved to be a message of reassurance to many an anxious citizen, in many a State, — not least so to that great citizen who, from the slopes of Mount Vernon, was then watching, night and day, for signs of some abatement in the storm of civil discord. Those words, too, have, in our time, won for the orator who spoke them the deliberate, and the almost lyrical, applause of the greatest historian who has yet laid hand on the story of the Constitution: “Henry showed his genial nature, free from all malignity. He was like a billow of the ocean on the first bright day after the storm, dashing itself against the rocky cliff, and then, sparkling with light, retreating to its home.” [Bancroft, Hist. Const, ii. 316-317]

Long after the practical effects of the Virginia convention of 1788 had been merged in the general political life of the country, that convention was still proudly remembered for the magnificent exertions of intellectual power, and particularly of eloquence, which it had called forth. So lately as the year 1857, there was still living a man who, in his youth, had often looked in upon that famous convention, and whose enthusiasm, in recalling its great scenes, was not to be chilled even by the frosts of his ninety winters: —

“The impressions made by the powerful arguments of Madison and the overwhelming eloquence of Henry can never fade from my mind. I thought them almost supernatural. They seemed raised up by Providence, each in his way, to produce great results: the one by his grave, dignified, and irresistible arguments to convince and enlighten mankind; the other, by his brilliant and enrapturing eloquence to lead whithersoever he would.” [Rives, Life of Madison, ii. 610]

Those who had heard Patrick Henry on the other great occasions of his career were ready to say that his eloquence in the convention of 1788 was, upon the whole, fully equal to anything ever exhibited by him in any other place. The official reports of his speeches in that assemblage were always declared to be inferior in “strength and beauty” to those actually made by him there. [Kennedy, Life of Wirt, i. 345] “In forming an estimate of his eloquence,” says one gentleman who there heard him,” no reliance can be placed on the printed speeches. No reporter whatever could take down what he actually said; and if he could, it would fall far short of the original.” [Spencer Roane, MS]

In his arguments against the Constitution Patrick Henry confined himself to no systematic order. The convention had indeed resolved that the document should be discussed, clause by clause, in a regular manner; but in spite of the complaints and reproaches of his antagonists, he continually broke over all barriers, and delivered his “multiform and protean attacks” in such order as suited the workings of his own mind.

In the course of that long and eager controversy, he had several passages of sharp personal collision with his opponents, particularly with Governor Randolph, whose vacillating course respecting the Constitution had left him exposed to the most galling comments, and who on one occasion, in his anguish, turned upon Patrick Henry with the exclamation: “I find myself attacked in the most illiberal manner by the honorable gentleman. I disdain his aspersions and his insinuations. His asperity is warranted by no principle of parliamentary decency, nor compatible with the least shadow of friendship; and if our friendship must fall, let it fall, like Lucifer, never to rise again.” [Elliot, Debates, iii. 187]Like all very eloquent men, he was taunted, of course, for having more eloquence than logic; for “his declamatory talents;” for his “vague discourses and mere sports of fancy;” for discarding “solid argument; “and for “throwing those bolts” which he had ” so peculiar a dexterity at discharging.” [Ibid. iii. 406, 104, 248, 177.] On one occasion, old General Adam Stephen tried to burlesque the orator’s manner of speech; [St. George Tucker, MS.] on another occasion, that same petulant warrior bluntly told Patrick that if he did “not like this government,” he might “go and live among the Indians,” and even offered to facilitate the orator’s self-expatriation among the savages: “I know of several nations that live very happily; and I can furnish him with a vocabulary of their language.” [Elliot, Debates, iii. 580.]

Knowing, as he did, every passion and prejudice of his audience, he adopted, it appears, almost every conceivable method of appeal. “The variety of arguments,” writes one witness, “which Mr. Henry generally presented in his speeches, addressed to the capacities, prejudices, and individual interests of his hearers, made his speeches very unequal. He rarely made in that convention a speech which Quintilian would have approved. If he soared at times, like the eagle, and seemed like the bird of Jove to be armed with thunder, he did not disdain to stoop like the hawk to seize his prey, — but the instant that he had done it, rose in pursuit of another quarry.” [St. George Tucker, MS.]

Perhaps the most wonderful example of his eloquence, if we may judge by contemporary descriptions, was that connected with the famous scene of the thunder-storm, on Tuesday, the 24th of June, only one day before the decisive vote was taken. The orator, it seems, had gathered up all his forces for what might prove to be his last appeal against immediate adoption, and was portraying the disasters which the new system of government, unless amended, was to bring upon his countrymen, and upon all mankind: “I see the awful immensity of the dangers with which it is pregnant. I see it. I feel it. I see beings of a higher order anxious concerning our decision. When I see beyond the horizon that bounds human eyes, and look at the final consummation of all human things, and see those intelligent beings which inhabit the ethereal mansions reviewing the political decisions and revolutions which, in the progress of time, will happen in America, and the consequent happiness or misery of mankind, I am led to believe that much of the account, on one side or the other, will depend on what we now decide. Our own happiness alone is not affected by the event. All nations are interested in the determination. We have it in our power to secure the happiness of one half of the human race. Its adoption may involve the misery of the other hemisphere.” Thus far the stenographer had proceeded, when he suddenly stopped, and placed within brackets the following note: “[Here a violent storm arose, which put the House in such disorder, that Mr. Henry was obliged to conclude.] ” [Elliot, Debates, iii. 625.] But the scene which is thus quietly dispatched by the official reporter of the convention was again and again described, by many who were witnesses of it, as something most sublime and even appalling. After having delineated with overpowering vividness the calamities which were likely to befall mankind from their adoption of the proposed frame of government, the orator, it is said, as if wielding an enchanter’s wand, suddenly enlarged the arena of the debate and the number of his auditors; for, peering beyond the veil which shuts in mortal sight, and pointing ” to those celestial beings who were hovering over the scene,” he addressed to them “an invocation that made every nerve shudder with supernatural horror, when, lo! a storm at that instant rose, which shook the whole building, and the spirits whom he had called seemed to have come at his bidding. Nor did his eloquence, or the storm, immediately cease; but availing himself of the incident, with a master’s art, he seemed to mix in the fight of his ethereal auxiliaries, and, rising on the wings of the tempest, to seize upon the artillery of heaven, and direct its fiercest thunders against the heads of his adversaries.’ The scene became insupportable; and the House rose without the formality of adjournment, the members rushing from their seats with precipitation and confusion.”[Wirt, 296-297. Also Spencer Roane, MS.]

source: Patrick Henry, Volume 3;  By Moses Coit Tyler

The Greatest Domestic Terrorist Organization in America is the Federal Government

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“On every unauthoritative exercise of power by the legislature must the people rise in rebellion or their silence be construed into a surrender of that power.” ~ Thomas Jefferson

The federal government has become the greatest domestic terrorist organization, and the greatest threat to peace and happiness in America. The continuing slide towards a police state we see in America today, is on a trajectory that cannot be sustained for long among a free people. With the militarization of the various governmental agencies in the federal government and the nations police forces, it should be obvious to anyone the federal government has ceased to work for the best interests of the citizenry or the nation.

It should be noted the Nazi’s and Third Reich in Germany rose to power because the German people were more concerned about the economy than they were about anything else. Just as we see in America today, people only care about politics and what the government is doing when it affects their pocket books. People need to wake up and look to the history of the world, to learn what is possible and how to avoid the mistakes of the past in made in other parts of the world as well as our own.

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"Whoever would overthrow the liberty of a nation must begin 
by subduing the freeness of speech." Benjamin Franklin 
Written when he was 16.

When you have instances where a tortoise takes precedent over American lives and lively hoods, it is unsustainable against the bulwark of our freedoms. There are many instances like this, including but not limited to:

Federal EPA i.e. Environmental Propaganda Agency now claims it can garnish the wages of individual Americans, families, homeowners, etc. who they deem are violating EPA rules and regulations. No judge needed, no court approval or oversight, they can do it just like the IRS. This is what you call tyranny, the acts of our current federal government are in many ways much more egregious than those acts of King George III, whom the colonial Americans fought against for Independence in the Revolutionary War.

Farmers in California being denied the water they need to grow produce for the nation because of a smelt. Ranchers in various parts of the country being denied the right to graze their cattle on public lands, or being fined for cleaning out a water course to allow for the free flow of water. Builders being denied the right to build what they choose to build, on land they own. Home owners being denied the right to even catch rain in a barrel that flows from the roof of the houses they own. It is nothing short of tyranny designed to cause terror among the domestic population and is therefore domestic terrorism.

When you have a pipeline that would benefit the nation and citizenry being denied the needed permits through numerous studies, studies that find no harm would come from the same, yet the federal government through it’s domestic terrorist arm the EPA continues to deny the permits. When this same government imposes regulations that are so egregious they cause numerous business and job losses in coal country. It is nothing short of domestic terror and government abuse of the citizenry.

When you have the IRS, FEC, OSHA, FBI, DoJ, BLM, DHS and numerous other domestic terrorist agencies of the federal government targeting their political opponents. When you have the NSA doing nonstop surveillance and spying on the American people. It is nothing short of domestic terror, and designed to cause fear among the citizenry.

When you have members of the Government Oversight Committee coordinating with the IRS and other agencies in that same targeting of conservative groups, and other members of Congress and the Whitehouse calling on the IRS to do that targeting. It is nothing short of domestic terror and designed to cause a chilling effect on those who would speak against them.

When you have the Whitehouse take punitive measures against the American people during the most recent government shutdown: i.e. Closing the WWII Memorial to veterans, the ocean to fisherman, highway scenic overlooks, and the national parks to the American public who paid for those parks with their tax dollars and numerous other punitive and adolescent measures designed to make the American people call on Congress to cave to the Whitehouse demands. It is nothing short of domestic terror and reflect more the actions of a third world dictator, than those of an American president who should reflect the values of the American citizenry.

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When you have members of the TSA, created by the George W. Bush administration; committing lewd and lascivious sexual acts on the general public and given sanction to do so by the federal government. It is nothing short of domestic terror and designed to condition the citizenry to surrender more and more of their liberties under the guise of protecting them.

When you have a federal government, who will turn the full weight of it’s power against the citizens, and do nothing about the influx of law breakers through our porous southern border. It is indeed nothing short of terror and has no place in America, the Land of the Free.

When The same federal government kills cattle because a rancher loses his appeals to the federal courts that are stacked against him and doesn’t pay the fines imposed upon him. This same government refuses to pay the millions awarded to another rancher (Wayne Hage) who took it upon himself to learn the law because of his fathers 20 year dispute with the federal government, and in so doing allowed him to prevail in his legal disputes against that same government, it is nothing short of domestic government tyranny and abuse of power.

When you have the federal government printing and pumping money into the stock market to buoy the numbers so the economy seems to be doing better than we average American’s know it to be. When the actions of the federal governmental policies devaluing the dollar to such an extent it causes prices, not only on luxuries to skyrocket, but also the basic staples and needs of human life, such as groceries, electricity, and fuel to double and triple in the years since Obama became president, it is nothing short of domestic terror, which does only harm to the tranquility and peace of the citizenry.

When you have the Massachusetts Department of Children and Families team up with Boston Children’s Hospital to kidnap a child from Connecticut and keep her from her family as they did, and continue to do with Justina Pelletier, and the court imposes a gag order to keep the Pelletier from speaking about it. That is not indicative of American values, those are more like tactics of a despot who denies the rights of parents and families,  It is nothing short of government abuse of power and domestic terror. It is also an indication of what America has in store for her with Obamacare, since Obamacare was designed by the same people who designed the Massachusetts healthcare system.

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I could spend all day making a list and providing links to various instances of domestic terror by the federal government, however I think enough Americans are beginning to see them in their personal lives that I do not need to do so.

It is indeed time for the nation to stand up against the biggest bullies in America and take back our country from the federal government and the people who support this same tyrannical terroristic organization. Congress is not blameless in this growing domestic terrorism by the government. For it was they who created the monster, and it is they who can pass legislation or resend legislation that has led to the abuse by the monster they created. It would be wise from what we are seeing today for the House of Representatives and the United States Senate to fix the alphabet agency soup they created before the people rise up against the same; due to the lack of action on the part of Congress, the Supreme Court and the President to reign in the government we pay for through our tax dollars.

I encourage and invite you all to add to the list in the comments below…

One last message before I sign off: Attention Government Employees and Officials: YOU are our hirelings, servants, and employees, NOT our parents, rulers, or lords and We the people are NOT your Customers!

We the People are the Ruler’s in America! We the People ARE the Last Word, NOT the Legislator, NOT the Supreme Court, NOT the President. When We Stand Together, our Hirelings have no choice but to Listen!

“The government is merely a servant―merely a temporary servant; it cannot be its prerogative to determine what is right and what is wrong, and decide who is a patriot and who isn’t. Its function is to obey orders, not originate them.” ~ Mark Twain

UPDATE: Harry Reid doesn’t want Americans to get away with breaking laws, but if illegal aliens break the law; he gives them citizenship! Forget about the GOP’s so called war on women, so-called by democrats to distract. Think of the federal governments war on us ALL!

Also see:What Measures are actually taken by wicked and desperate Ministers to ruin and enslave their Country
Freedom of Speech the Same is Inseparable From Public Liberty: Cato Letter No. 15
Of Rebellion: Observations on the Boston Port-Bill by John Q. Adams 1774
Extract from Hyperion by “The Patriot” Josiah Quincy Jr., 1768
Appeal to the People Concerning the Heavy Hand of Government
The Reason Behind Low Congressional Approval Ratings “Far Too Long”
The Democrats Assault on the First Amendment in America
Sensible According to the Democrats
A System That Breeds Contempt In Its Children
The Consequence of Bad Legal Precedent in American Legislation
The Powers of Congress; House of Representatives and the Senate: Constitution Article I
The Powers of the Executive Branch i.e. the President: Constitution Article II
Weird Weather in the United States evidence of Climate Change?
A WARNING TO AMERICANS by John Dickinson 1732-1808
GRIEVANCES OF THE COLONISTS TO THE BRITISH GOVERNMENT by Richard Henry Lee 1775

AMERICAN FOUNDATIONS

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AMERICAN FOUNDATIONS
The Rev. ARTHUR J. PENNELL, New Haven, Conn.

Seek ye first the kingdom of God.—Matt. 6: 33.

A QUESTION often arises in the minds of men whether this country is a Christian country! The status of a notion is determined by its ideals. Ideals are found in the highest aspirations and noblest ambitions of a nation’s leaders. The artist of whatever school is judged not by his first operation in the dusting of the canvas, nor by the mixing of the colors for the dubbing, nor by the first effort of his brush; a Raphael is supreme because of his Madonna. So the test of a people is to be found in their highest conception of conduct as portrayed through life and transmitted by printed page or word of mouth to posterity.

In the days preceding the printing press, man was educated in the deeds of heroism through the minstrel, thereafter by copied pages of historic accomplishments. Now through the utilization of the minerals of the earth and the harnessing of the vapors a power-driven writer presents for man’s perusal and careful study the achievements of men and nations. History is the record of the world’s noblest, and the meridian splendor of the achievement by man was when the sublime manifestation of character was exhibited to mankind through Jesus Christ.

We are brought, therefore, to the conclusion that we can estimate the ideals of a nation by its heroes—those supermen, who in the strain and stress of life’s performances stood unabashed and unafraid before every element which sought to destroy the God-germ within them. Every nation has its heroes: a Kossuth, a Garibaldi, a Napoleon, a Cromwell, a Washington or a Lincoln, a King Albert, or n Foch; but these are, so to speak, limited heroes. The world needs one who transcends limitations, whose country has no physical confines, whose nationality is lost in its broad universalism. Such is the Christ. The record of his life is the newer portion of the world’s greatest historical record now extant—the New Testament—indissolubly bound up with that other volume which in combination forms the Guide Book for human destiny. It if herein that men have ever found their ideals. It is interesting, herewith, to note, that this book, which is the basic foundation of all Christian institutions, the hope of all Christ believing souls, the inspiration of all Jesus inclined mortals, was chosen for use in the recent inauguration of a new President because in the days of yesterday’s great American utilized this time-honored volume by turning to its pages and with sincerity of heart and nobility of purpose pledged himself thereon to preserve the Constitution and to uphold the laws of this youthful republic. Surely, if apostolic succession was ever fulfilled, it was on March fourth last—when the mantle of the first American fell upon the new President, the spirit of our immortal Lincoln and the beauty of the martyred McKinley were recalled in the simple ceremony of the inauguration of the twenty-ninth President of the United States of America. Foundations, whether individual or national, to be lasting must go down deep into the past and be linked to the great minds of by-gone days. The Bible opened before that great gathering in Washington was the book which had been consecrated by the taking of the oath of office by the “Father of his country” and carried in procession at the unveiling of that monument which like a noble character towers to the skies. It was the heritage of that people of whom we are compelled to think when the word America is pronounced.

Read the Bible—read the Bible, let no religious book take its place. Through all my perplexities and distresses I never read any other book, and I never felt the want of any other. It has been my hourly study; and all my knowledge of the doctrines, and all my acquaintance with the experience and realities of religion, have been derived from the Bible only.” William Wilberforce Early American Statesman and Leader of the movement to abolish slavery

One cannot talk of “American Foundations” without recalling the struggles of the Puritan Fathers, who with their Pilgrim associates fought out the battles of religious freedom, shackled the usurping powers of overbearing government, and “with a heart for any fate” journeyed forth “seeking first the kingdom of God” to launch their project of government where, unmolested by governmental edicts and churchly intolerance, man might live and thrive.

In their native land laws were enacted, limitations were placed, punishments were meted out, restrictive measures were enforced, until the soul of God-fearing man was trammeled, religion became a mockery, and will was but a machine. Hope kept alive in these heroic souls the thought of a newer and a brighter day. Each morning’s sun dawned upon a day of more oppressive measures and firmer determination to wipe out those obnoxious people whose wills were their own. Fleeing their own country, they waited with patience in a land of friends, and for eleven years passed their time in strengthening their organization. Unlike the Huguenots who had fled to Germany, they never contemplated the losing of their individuality or of being absorbed by their surroundings. It was this desire to maintain their separate existence which impelled them to journey to lands practically unknown. At home there was no freedom, abroad there would be no separateness; migration was their only hope.

Westward this band of Pilgrims wended their way, oblivious of dangers, fearless of terrors, undaunted by hardship. These heroes of early American life were buoyed up in their distress with the thoughts of such as Andrew Melville who, on being called in question for a statement made in a public address in which he had alluded to King James VI as “God’s silly vassal,” replied, “I tell you, sir, there are two kingdoms and two kings in Scotland. There is Christ Jesus the King, and his kingdom in the Kirk,[Kirk refers to the Church] whose subject James VI is, and of whose kingdom he is not a king, nor a lord, nor a head, but a member.” And back of Melville was a people fully aroused to the conviction that there is an eternal law of God which kings no less than the meanest subject must obey. This kind grows only on the tree of Bible knowledge and religious freedom. Thus we see that the primal foundation of America is the Bible, for it was this book with these principles which the Pilgrims brought, which they utilized until they welded them into the very fiber of the nation’s life.

“The general diffusion of the Bible, is the most effectual way to civilize and humanize mankind; to purify and exalt the general system of public morals; to give efficacy to the just precepts of international and municipal law; to enforce the observance of prudence, temperance, justice, and fortitude, and to improve all the relations of social and domestic life.” Chancellor James Kent author of Commentaries on American Law

A second foundation of the American republic is education. Wherever the Bible is found as an open book there also will be found education for the people. Spiritual and intellectual death stalk in those lands where the Bible is closed. Those heroes of Americanism, realizing that freedom can not survive in ignorance, established America’s two greatest institutions at the same time and place. Wherever the meeting house was erected there also was the school house; and in the early days of this nation’s history most colleges and schools of learning could trace their beginnings to the inspiration of the Church. Wisely our early fathers emphasized the value and importance of mental development. The citizen of to-morrow is the student of to-day. Education enables us through reading and study to utilize the values of the past. Napoleon once said, “Show me a family of readers and I will show you the rulers of the world.” The effect of educational advance has not been confined to the little experiment in free government, but has extended its influence to the uttermost parts of the earth. Through the influence of those far-seeing heroes, penetrating into nations of different ideals, Western education has caused democracy to find lodgment even in lands hitherto uncongenial to it, and to-day the principles of our forefathers are seen in economic life and governmental reform throughout the world. So long as the institutions of learning maintain their proper position in the life of our country, the ideals of the fathers and the principles of our republic can never be lost to mankind.

A third foundation of this republic is equal opportunity. This question has ever been prominent in our history. This foundation was bought for American humanity as dearly as any privilege enjoyed by the human race. If 1776 saw the struggle for the conviction that “divine right” of government resides in the average citizen, we may as truly say that 1861-65 saw the struggle to make plain that in this republic the success of the individual does not depend upon the ability of the few to enslave the many, but that “the laborer is worthy of his hire,” and that no laborer is worthy to be hired unless he has ample opportunity to become all that is possible for him to be. As an institution, then, a false foundation was removed from under the structure of our heritage, and after reconstructing our building in harmony with those higher views, we set forth again upon the course of national life. Again in 1898 we declared to the world that the principles we held must be respected within the radius of our possibilities. The unlimited invitation which has been extended to the world’s oppressed has resulted in the gathering together within our borders of peoples whose ideals and principles are as distantly removed from ours as is the atmosphere of the frozen Arctic from the oppressive heat of the equatorial regions. This strange admixture of alien ideals with American foundations has resulted in much unrest and social disturbance. It has stirred up strife where only the peaceful waters of a summer sea had flowed. It has sometimes turned the honest workman into an avaricious traveler or into a guerrilla of social warfare and a destroyer of national industry.

“I deem myself fortunate,” said the venerable Ex-President of the United States, John Quincy Adams, “in having the opportunity—at a stage of a long life drawing rapidly to its close, to bear, at this place, the capital of the National Union, in the Hall of Representation of the North American people, in the chair of the presiding officer of an assembly representing the whole people, the personification of the great and mighty nation—to bear my solemn testimonial of reverence and gratitude to that Book of books, the Holy Bible. In the midst of the painful and perilous conflicts inseparable from public life, and at the eve of that moment when the grave shall close over them for ever, I may be permitted to indulge the pleasing reflection, that, having been taught in childhood the unparalleled blessings of the Christian gospel, in the maturity of manhood I associated with my brethren of that age, for spreading the light of that gospel over the face of the earth, by the simple and silent process of placing in the hands of every human being who needed, and could not otherwise procure it, the Book which contains the duties and admonitions, the promises and the rewards of the Christian gospel.”

At first glimpse one may possibly find in himself a feeling of pessimism; but think carefully! The foundations of this great nation are deeply rooted and well founded. When he who has been chosen by the multitude of bis fellows exercising their prerogative as citizens and voters in a land of democratic ideals steps forward to take his solemn obligation of service and to vow before God and men his determination to conserve the interests of the people; when with head bared and hand uplifted he stands before the open Bible, the basis of our Constitution, the inspiration of our fathers, the book of life’s principles; when with solemnity and with sincerity the chief executive—with no further ceremony, no pomp and splendor, no pretension or spirit of arrogance, but “with singlemindedness of purpose and humility of spirit—implores the favor and guidance of God, and can say with these, “I am unafraid and confidently face the future”—then Americans all, with one chief executive, one God, one confident hope, can rally, and imploring this same God of our American heritage, found in this open Bible of our inheritance, educated in and through our educational systems, strongly intrenched in the belief of opportunity for all, and, reiterating the injunctions of the past to the present and future, can pledge ourselves ever to uphold those ideals which were written into our life by Washington. We may resolve that the spirit of Lincoln shall ever live in us, and slavery of no race or color shall exist wherever the American flag shall fly; that ignorance shall never encircle the mind of our youth; that the Bible, which has been the spring of education, the spur to freedom of the individual, and has shown the highway to God in man’s search for the higher spirituality, shall ever be in this land an open book.

John Randolph of Roanoke, “I would not give up my slender portion of the price paid for our redemption—I would not exchange my little portion in the Son of David, for the power and glory of the Parthian or Roman empires, as described by Milton in the temptation of our Lord and Saviour—not for all with which the enemy tempted the Saviour of man….” Speaking of Randolph ex-Senator Thomas Benton in his Thirty Years’ View said; “The last time I saw him, which was in that last visit to Washington, after his return from the Russian mission, and when he was in the full view of death, I heard him read the chapter in the Revelation (of the opening of the seals), with such power and beauty of voice and delivery, and such depth of pathos, that I felt as if I had never heard the chapter read before. When he had got to the end of the opening of the sixth seal, he stopped the reading, laid the book (open at the place) on his breast, as he lay on his bed, and began a discourse upon the beauty and sublimity of the Scriptural writings, compared to which he considered all human compositions vain and empty. Going over the images presented by the opening of the seals, he averred that their divinity was in their sublimity—that no human power could take the same images, and inspire the same awe and terror, and sink ourselves into such nothingness in the presence of the ‘wrath of the Lamb’—that he wanted no proof of their Divine origin but the sublime feelings they inspired.”

Source: The Homiletic Review – Volume 82 published 1921

Extract from Hyperion by “The Patriot” Josiah Quincy Jr., 1768

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Josiah Quincy Jr. (1744 –1775) AKA “The Patriot” was an American lawyer and patriot. He was a principal spokesman for the Sons of Liberty in Boston prior to the Revolution. He was an energetic advocate for the Whig party in the pre-Revolutionary political debates. With John Adams he defended Captain Preston after the so-called “Boston Massacre,” and in 1774, when scarcely thirty years of age, he was the confidential agent in London of the patriot party. Dying on shipboard, almost in sight of his native New England coast, Josiah Quincy, J r., left behind him an infant son, whose long and honorable life, beginning before the Revolution, outlasted the war of the Rebellion. But President Josiah Quincy, of Harvard College, though he lived all his life on the family-place at Quincy, always identified himself with the city of Boston.

The commonwealth itself has no other strength or hope than the intelligence and virtue of the individuals that compose it. For the intelligence and virtue of individuals there is no other human assurance than laws providing for the education of the whole people. These laws themselves have no strength, or efficient sanction, except in the moral and accountable nature of man disclosed in the records of the Christian’s faith; the right to read, to construe, and to judge concerning which belongs to no class or caste of men, but exclusively to the individual, who must stand or fall by his own acts and his own faith, and not by those of another.The great comprehensive truths, written in letters of living light on every page of our history, the language addressed by every past age of New England to all future ages, is this: Human happiness has no perfect security but freedom; freedom, none but virtue; virtue, none but knowledge; and neither freedom, nor virtue, nor knowledge has any vigor, or immortal hope, except in the principles of the Christian faith, and in the sanctions of the Christian religion.” ~ Josiah Quincy, October 1831; Harvard University; Dedication of the Dane Law College

Extract from “Hyperion*” by The Patriot; Josiah Quincy Jr., 1768

* The first part of this extract was published in the Boston Gazette in September, 1767, on receiving information of threatening import from England; the remainder appeared in October, 1768, when British troops had landed in Boston, and taken possession of Faneuil Hall, under circumstances intended to inspire the people with alarm and terror.—Ed.

When I reflect on the exalted character of the ancient Britons, on the fortitude of our illustrious predecessors, on the noble struggles of the late memorable period, and from these reflections, when, by a natural transition, I contemplate the gloomy aspect of the present day, my heart is alternately torn with doubt and hope, despondency and terror. Can the true, generous magnanimity of British heroes be entirely lost in their degenerate progeny? Is the genius of liberty, which so late inflamed our bosoms, fled forever?

An attentive observer of the deportment of some particular persons in this metropolis would be apt to imagine, that the grand point was gained; that the spirit of the people was entirely broken to the yoke; that all America was subjugated to bondage. Already the minions of power, in fancy, fatten and grow wanton on the spoils of the land. They insolently toss the head, and put on the air of contemptuous disdain. In the imaginary possession of lordships and dominions, these potentates and powers dare tell us, that our only hope is to crouch, to cower under, and to kiss, the iron rod of oppression. Precious sample of the meek and lowly temper of those who are destined to be our lords and masters!

Be not deceived, my countrymen. Believe not these venal hirelings, when they would cajole you by their subtleties into submission, or frighten you by their vaporings into compliance. When they strive to flatter you by the terms “moderation and prudence,” tell them that calmness and deliberation are to guide the judgment; courage and intrepidity command the action. When they endeavour to make us “perceive our inability to oppose our mother country,” let us boldly answer;—In defence of our civil and religious rights, we dare oppose the world; with the God of armies on our side, even the God who fought our fathers’ battles, we fear not the hour of trial, though the hosts of our enemies should cover the field like locusts. If this be enthusiasm, we will live and die enthusiasts.

Blandishments will not fascinate us, nor will threats of a “halter” intimidate. For, under God, we are determined, that wheresoever, whensoever, or howsoever we shall be called to make our exit, we will die freemen. Well do we know that all the regalia of this world cannot dignify the death of a villain, nor diminish the ignominy, with which a slave shall quit existence. Neither can it taint the unblemished honor of a son of freedom, though he should make his departure on the already prepared gibbet, or be dragged to the newly erected scaffold for execution. With the plaudits of his conscience he will go off the stage. A crown of joy and immortality shall be his reward. The history of his life his children shall venerate. The virtues of their sire shall excite their emulation.

If there ever was a time, this is the hour, for Americans to rouse themselves, and exert every ability. Their all is at a hazard, and the die of fate spins doubtful. In vain do we talk of magnanimity and heroism, in vain do we trace a descent from the worthies of the earth, if we inherit not the spirit of our ancestors. Who is he that boasteth of his patriotism? Has he vanquished luxury, and subdued the worldly pride of his heart? Is he not still drinking the poisonous draught, and rolling the sweet morsel under his tongue? He who cannot conquer the little vanity of his heart, and deny the delicacy of a debauched palate, let him lay his hand upon his mouth, and his mouth in the dust.

Now is the time for this people to summon every aid, human and divine; to exhibit every moral virtue, and call forth every Christian grace. The wisdom of the serpent, the innocence of the dove, and the intrepidity of the lion, with the blessing of God, will yet save us from the jaws of destruction.

Where is the boasted liberty of Englishmen, if property may be disposed of, charters suspended, assemblies dissolved, and every valued right annihilated, at the uncontrollable will of an external power? Does not every man, who feels one ethereal spark yet glowing in his bosom, find his indignation kindle at the bare imagination of such wrongs? What would be our sentiments were this imagination realized.

Did the blood of the ancient Britons swell our veins, did the spirit of our forefathers inhabit our breasts, should we hesitate a moment in preferring death to a miserable existence in bondage? Did we reflect on their toils, their dangers, their fiery trials, the thought would inspire unconquerable courage.

Who has the front to ask, Wherefore do you complain? Who dares assert, that everything worth living for is not lost, when a nation is enslaved? Are not pensioners, stipendiaries and salary-men, unknown before, hourly multiplying upon us, to riot in the spoils of miserable America? Does not every eastern gale waft us some new insect, even of that devouring kind, which eat up every green thing? Is not the bread taken out of the children’s mouths and given unto the dogs? Are not our estates given to corrupt sycophants, without a design, or even a pretense, of soliciting our assent; and our lives put into the hands of those whose tender mercies are cruelties? Has not an authority in a distant land, in the most public manner, proclaimed a right of disposing of the all of Americans? In short, what have we to lose? What have we to fear? Are not our distresses more than we can bear? And, to finish all, are not our cities, in a time of profound peace, filled with standing armies, to preclude from us that last solace of the wretched—to open their mouths in complaint, and send forth their cries in bitterness of heart?

But is there no ray of hope? Is not Great Britain inhabited by the children of those renowned barons, who waded through seas of crimson gore to establish their liberty? and will they not allow us, their fellow-men, to enjoy that freedom which we claim from nature, which is confirmed by our constitution, and which they pretend so highly to value? Were a tyrant to conquer us, the chains of slavery, when opposition should become useless, might be supportable; but to be shackled by Englishmen,—by our equals,—is not to be borne. By the sweat of our brow we earn the little we possess; from nature we derive the common rights of man; and by charter we claim the liberties of Britons. Shall we, dare we, pusillanimously surrender our birthright? la the obligation to our fathers discharged? Is the debt we owe posterity paid? Answer me, thou coward, who hidest thyself in the hour of trial; •If there is no reward in this life, no prize of glory in the next, capable of animating thy dastard soul, think and tremble, thou miscreant! at the whips and stripes thy master shall lash thee with on earth,—and the flames and scorpions thy second master shall torment thee with hereafter!

Oh, my countrymen! what will our children say, when they read the history of these times, should they find that we tamely gave away, without one noble struggle, the most invaluable of earthly blessings! As they drag the galling chain, will they not execrate us? If we have any respect for things sacred, any regard to the dearest treasure on earth; if we have one tender sentiment for posterity; if we would not be despised by the whole world; — let us, in the most open, solemn manner, and with determined fortitude, swear—We will die, if we cannot live freemen!

Be not lulled, my countrymen, with vain imaginations or idle fancies. To hope for the protection of Heaven, without doing our duty, and exerting ourselves as becomes men, is to mock the Deity. Wherefore had man his reason, if it were not to direct him? wherefore his strength, if it be not his protection? To banish folly and luxury, correct vice and immorality, and stand immoveable in the freedom in which we are free indeed, is eminently the duty of each individual at this day. When this is done, we may rationally hope for an answer to our prayers—for the whole counsel of God, and the invincible armor of the Almighty.

However righteous our cause, we cannot, in this period of the world, expect a miraculous salvation. Heaven will undoubtedly assist us if we act like men; but to expect protection from above, while we are enervated by luxury, and slothful in the exertion of those abilities, with which we are endued, is an expectation vain and foolish. With the smiles of Heaven, virtue, unanimity and firmness will ensure success. While we have equity, justice and God on our side, Tyranny, spiritual or temporal, shall never ride triumphant in a land inhabited by Englishmen.

An attentive observer of the deportment of some particular persons in this metropolis would be apt to imagine, that the grand point was gained; that the spirit of the people was entirely broken to the yoke; that all America was subjugated to bondage. Already the minions of power in fancy fatten and grow wanton on the spoils of the land. They insolently toss the head, and put on the air of contemptuous disdain. In the imaginary possession of lordships and dominions, these potentates and powers dare tell us, that our only hope is to crouch, to cower under, and to kiss, the iron rod of oppression. Precious sample of the meek and lowly temper of those who are destined to be our lords and masters!

Conclusion of “Observations on the Boston Port Bill.”

Thus, my countrymen, from the days of Gardiner and Morton, Gorges and Mason, Randolph and Cranfield, down to the present day, the inhabitants of this northern region have constantly been in dangers and troubles, from foes open and secret, abroad and in their bosom. Our freedom has been the object of envy, and to make void the charter of our liberties the work and labour of an undiminished race of villains. One cabal having failed of success, new conspirators have risen, and what the first could not make “void,” the next “humbly desired to revoke.” To this purpose one falsehood after another hath been fabricated and spread abroad with equal turpitude and equal effrontery. That minute detail, which would present actors now on the stage, is the province of History. She, inexorably severe towards the eminently guilty, will delineate their characters with the point of a diamond; and, thus blazoned in the face of day, the abhorrence and execrations of mankind will consign them to an infamous immortality.

So great has been the credulity of the British court from the beginning, or such hath been the activity of false brethren, that no tale inimical to the Northern Colonies, however false or absurd, but what hath found credit with the administration, and operated to the prejudice of the country. Thus it was told and believed in England, that we were not in earnest in the expedition against Canada at the beginning of this century, and that the country did everything in its power to defeat the success of it, and that the misfortune of that attempt ought to be wholly attributed to the Northern Colonies: while nothing could be more obvious, than that New England had exhausted her youngest blood, and all her treasures, in the undertaking; and that every motive of self-preservation, happiness and safety must have operated to excite these provinces to the, most spirited and persevering measures against Canada.

The people, who are attacked by bad men, have a testimony of their merit, as the constitution, which is invaded by powerful men, hath an evidence of its value. The path of our duty needs no minute delineation; it lies level to the eye. Let us apply, then, like men sensible of its importance, and determined on its fulfillment. The inroads on our public liberty call for reparation; the wrongs we have sustained call for justice. That reparation and that justice may yet be obtained by union, spirit and firmness. But to divide and conquer was the maxim of the devil in, the garden of Eden; and to disunite and enslave hath been the principle of all his votaries from that period to the present. The crimes of the guilty are to them the cords of association, and dread of punishment the indissoluble bond of union. The combinations of public robbers ought, therefore, to cement patriots and heroes: and, as the former plot and conspire to undermine and destroy the commonwealth, the latter ought to form a compact for opposition,— a band of vengeance.

What insidious arts, and what detestable practices, have been used to deceive, disunite and enslave the good people of this continent! The mystic appellations of loyalty and allegiance, the venerable names of government and good order, and the sacred ones of piety and public virtue, have been alternately prostituted to that abominable purpose. All the windings and guises, subterfuges and doublings, of which the human soul is susceptible, have been displayed on the occasion. But secrets, which were thought impenetrable, are no longer hid; characters deeply disguised are openly revealed; and the discovery of gross impostors hath generally preceded but a short time their utter extirpation.

Be not again, my countrymen, “easily captivated with the appearances only of wisdom and piety,—professions of a regard to liberty, and of a strong attachment to the public interest.” Your fathers have been explicitly charged with this folly by one of their posterity. Avoid this and all similar errors. Be cautious against the deception of appearances. “By their fruits ye shall know them,” was the saying of one, who perfectly knew the Human heart. Judge of affairs which concern social happiness by facts: judge of man by his deeds. For it is very certain, that pious zeal for days and times, for mint and cumin, hath often been pretended by those who were infidels at bottom; and it is as certain, that attachment to the dignity of government and the king’s service, hath often flowed from the mouths of men, who harboured the darkest machinations against the true end of the former, and were destitute of every right principle of loyalty to the latter. Hence, then, care and circumspection are necessary branches of political duty. And, as “it is much easier to restrain liberty from running into licentiousness, than power from swelling into tyranny and oppression,” so much more caution and resistance are required against the overbearing of rulers, than the extravagance of the people.

To give no more authority to any order of state, and to place no greater public confidence in any man, than is necessary for the general welfare, may be considered by the people as an important point of policy. But though craft and hypocrisy are prevalent, yet piety and virtue have a real existence: duplicity and political imposture abound, yet benevolence and public spirit are not altogether banished the world. As wolves will appear in sheep’s clothing, so superlative knaves and parricides will assume the vesture of the man of virtue and patriotism.

These things are permitted by Providence, no doubt, for wise and good reasons. Man was created for a rational, and was designed for an active being. His faculties of intelligence and force were given him for use. When the wolf, therefore, is found devouring the flock, no hierarchy forbids a seizure of the victim for sacrifice; so, also, when dignified impostors are caught destroying those whom their arts deceive, though their stations destined them to protect,—the sabre of justice flashes righteousness at the stroke of execution.

Yet be not amused, my countrymen! The extirpation of bondage and the re-establishment of freedom are not of easy acquisition. The worst passions of the human heart and the most subtle projects of the human mind, are leagued against you; and principalities and powers have acceded to the combination. Trials and conflicts you must, therefore, endure; hazards and jeopardies of life and fortune will attend the struggle. Such is the fate of all noble exertions for public liberty and social happiness. Enter not the lists without thought and consideration, lest you arm with timidity, and combat with irresolution. Having engaged in the conflict, let nothing discourage your vigour, or repel your perseverance. Remember that submission to the yoke of bondage is the worst that can befall a people, after the most fierce and unsuccessful resistance. What can the misfortunes of vanquishment take away, which despotism and rapine would spare ?” It had been easy,” said the great lawgiver Solon to the Athenians, “to repress the advances of tyranny, and prevent its establishment; but, now it is established and grown to some height, it would be more glorious to demolish it.” But nothing glorious is accomplished, nothing great is attained, nothing valuable is secured, without magnanimity of mind, and devotion of heart to the service. Brutus-like, therefore, dedicate yourselves at this day to the service of your country; and henceforth live a life of liberty and glory. “On the ides of March,”—said the great and good man to his friend Cassius, just before the battle of Philippi,—”on the ides of March I devoted my life to my country, and since that time I have lived a life of liberty and glory.”

Inspired with public virtue, touched with the wrongs, and indignant at the insults, offered his country, the highspirited Cassius exhibits an heroic example;—” Resolved as we are,”—replied the hero to his friend,—”resolved as we are, let us march against the enemy; for, though we should not conquer, we have nothing to fear.”

Spirits and genii like these rose in Rome, and have since adorned Britain; such also will one day make glorious this more western world. America hath in store her Bruti and Cassii—her Hampdens and Sydneys—patriots and heroes, who will form a band of brothers;—men, who will have memories and feelings, courage and swords,—courage, that shall inflame their ardent bosoms till their hands cleave to their swords, and their swords to their enemies hearts.

What Measures are actually taken by wicked and desperate Ministers to ruin and enslave their Country

Thomas Paine quote Politicians

NOTE: My comments in brackets […] and italics.

Cato Letters No. 17: Saturday, February 18, 1721; What Measures are actually taken by wicked and desperate Ministers to ruin and enslave their Country. by John Trenchard

Sir,

As under the best princes, and the best servants to princes alone, it is safe to speak what is true of the worst; so, according to my former promise to the public, I shall take the advantage of our excellent King’s most gentle government, and the virtuous administration of an uncorrupt ministry, to warn mankind against the mischiefs which may hereafter be dreaded from corrupt ones. It is too true, that every country in the world has sometimes groaned under that heavy misfortune, and our own as much as any; though I cannot allow it to be true, what Monsieur de Witt has long since observed, that the English court has always been the most thievish court in Europe.

Few men have been desperate enough to attack openly, and barefaced, the liberties of a free people. Such avowed conspirators can rarely succeed: The attempt would destroy itself. Even when the enterprise is begun and visible, the end must be hid, or denied. It is the business and policy of traitors, so to disguise their treason with plausible names, and so to recommend it with popular and bewitching colors, that they themselves shall be adored, while their work is detested, and yet carried on by those that detest it.

Thus one nation has been surrendered to another under the fair name of mutual alliance: The fortresses of a nation have been given up, or attempted to be given up, under the frugal notion of saving charges to a nation; and commonwealths have been trepanned into slavery, by troops raised or increased to defend them from slavery.

It may therefore be of service to the world, to shew what measures have been taken by corrupt ministers, in some of our neighboring countries, to ruin and enslave the people over whom they presided; to shew by what steps and gradations of mischief nations have been undone, and consequently what methods may be hereafter taken to undo others: And this subject I rather choose, because my countrymen may be the more sensible of, and know how to value the inestimable blessing of living under the best prince, and the best established government in the universe, where we have none of these things to fear.

Such traitors will probably endeavor first to get their prince [the majority of the people] into their possession, and, like Sejanus, shut him up in a little island, or perhaps make him a prisoner in his court; whilst, with full range, they devour his dominions, and plunder his subjects. When he is thus secluded from the access of his friends, and the knowledge of his affairs, he must be content with such misrepresentations as they shall find expedient to give him. False cases will be stated, to justify wicked counsel; wicked counsel will be given, to procure unjust orders. He [The people] will be made to mistake his foes for his friends, his friends for his foes; and to believe that his their affairs are in the highest prosperity, when they are in the greatest distress; and that public matters go on in the greatest harmony, when they are in the utmost confusion.

They will be ever contriving and forming wicked and dangerous projects, to make the people poor, and themselves rich; well knowing that dominion follows property; that where there are wealth and power, there will be always crowds of servile dependents; and that, on the contrary, poverty dejects the mind, fashions it to slavery, and renders it unequal to any generous undertaking, and incapable of opposing any bold usurpation. They will squander away the public money in wanton presents to minions, and their creatures of pleasure or of burden, or in pensions to mercenary and worthless men and women, for vile ends and traitorous purposes. [They are doing this today with the National Debt]

They will engage their country in ridiculous, expensive, fantastical wars, to keep the minds of men in continual hurry and agitation, and under constant fears and alarms; and, by such means, deprive them both of leisure and inclination to look into public miscarriages. Men, on the contrary, will, instead of such inspection, be disposed to fall into all measures offered, seemingly, for their defence, and will agree to every wild demand made by those who are betraying them. [They do not only do this with wars these days; they use all manner of manufactured crisis also]

When they have served their ends by such wars, or have other motives to make peace, they will have no view to the public interest; but will often, to procure such peace, deliver up the strong-holds of their country, or its colonies for trade, to open enemies, suspected friends, or dangerous neighbors, that they may not be interrupted in their domestic designs. [We see all this also happening today]

They will create parties in the commonwealth, or keep them up where they already are; and, by playing them by turns upon each other, will rule both. By making the Guelfs afraid of the Ghibelines, and these afraid of the Guelfs, they will make themselves the mediums and balance between the two factions; and both factions, in their turns, the props of their authority, and the instruments of their designs. [This is talking about class warfare, racial divisions, i.e. strife among the people against each other]

They will not suffer any men, who have once tasted of authority, though personally their enemies, and whose posts they enjoy, to be called to an account for past crimes, though ever so enormous. They will make no such precedents for their own punishment; nor censure treason, which they intend to commit. On the contrary, they will form new conspiracies, and invent new fences for their own impunity and protection; and endeavor to engage such numbers in their guilt, as to set themselves above all fear of punishment. [Benghazi, DOJ, NSA, IRS, AP, James Rosen; Eric Holder, Hillary Clinton, Barrack Obama, IRS Commissioners, Lois Lerner. This is all happening today]

They will prefer worthless and wicked men, and not suffer a man of knowledge or honesty to come near them, or enjoy a post under them. They will disgrace men of virtue, and ridicule virtue itself, and laugh at public spirit. They will put men into employments, without any regard to the qualifications for those employments, or indeed to any qualifications at all, but as they contribute to their designs, and shew a stupid alacrity to do what they are bid. They must be either fools or beggars; either void of capacity to discover their intrigues, or of credit and inclination to disappoint them. [We see this happening with the political leadership against the members of the Tea Party]

They will promote luxury, idleness, and expense, and a general deprivation of manners, by their own example, as well as by connivance [immoral or illegal act] and public encouragement. This will not only divert men’s thoughts from examining their behavior and politics, but likewise let them loose from all the restraints of private and public virtue. From immorality and excesses they will fall into necessity; and from thence into a servile dependence upon power.

In order to this, they will bring into fashion gaming, drunkenness, gluttony, and profuse and costly dress. They will debauch their country with foreign vices, and foreign instruments of vicious pleasures; and will contrive and encourage public revels, nightly disguises, and debauched mummeries [mummeries i.e. A pretentious or hypocritical show or ceremony.]

They will, by all practicable means of oppression, provoke the people to disaffection [hate, anger]; and then make that disaffection an argument for new oppression, for not trusting them any further, and for keeping up troops; and, in fine, for depriving them of liberties and privileges, to which they are entitled by their birth, and the laws of their country.

If such measures should ever be taken in any free country, where the people choose deputies to represent them, then they will endeavor to bribe the electors in the choice of their representatives, and so to get a council of their own creatures; and where they cannot succeed with the electors, they will endeavor to corrupt the deputies after they are chosen, with the money given for the public defence; and to draw into the perpetration of their crimes those very men, from whom the betrayed people expect the redress of their grievances, and the punishment of those crimes. And when they have thus made the representatives of the people afraid of the people, and the people afraid of their representatives; then they will endeavor to persuade those deputies to seize the government to themselves, and not to trust their principals any longer with the power of resenting their treachery and ill-usage, and of sending honester and wiser men in their room.

But if the constitution should be so stubbornly framed, that it will still preserve itself and the people’s liberties, in spite of all villainous contrivances [a thing that is created skillfully and inventively to serve a particular purpose] to destroy both; then must the constitution itself be attacked and broken, because it will not bend. There must be an endeavor, under some pretense of public good, to alter a balance of the government, and to get it into the sole power of their creatures, and of such who will have constantly an interest distinct from that of the body of the people. [We see Obama and the Democrat party doing this, in trying to get the majority back in the House of Representatives like they had in the first two years of his presidency, when they forced Obamacare on US]

But if all these schemes for the ruin of the public, and their own impunity, should fail them; and the worthy patriots of a free country should prove obstinate in defence of their country, and resolve to call its betrayers to a strict account; there is then but one thing left for such traitors to do; namely, to veer about, and, by joining with the [United Nations] enemy of their prince [the people] and country, complete their treason.

I have somewhere read of a favorite and first minister to a neighboring prince, long since dead, who played his part so well, that, though he had, by his evil counsels, raised a rebellion, and a contest for the crown; yet he preserved himself a resource, whoever got the better: If his old master succeeded, then this Achitophel, by the help of a baffled rebellion, ever favorable to princes, had the glory of fixing his master in absolute power: But, as his brave rival got the day, Achitophel had the merit of betraying his old master to plead; and was accordingly taken into favor.

Happy therefore, thrice happy, are we, who can be unconcerned spectators of the miseries which the greatest part of Europe is reduced to suffer, having lost their liberties by the intrigues and wickedness of those whom they trusted; whilst we continue in full enjoyment of ours, and can be in no danger of losing them, while we have so excellent a King, assisted and obeyed by so wise a Parliament.

T. I am, &c.

THE LIBERTY OF THE INDIVIDUAL by John Stuart Mill

JohnStuartMill

THE subject of this Essay is not the so-called Liberty of the Will, so unfortunately opposed to the misnamed doctrine of Philosophical Necessity; but Civil, or Social Liberty: the nature and limits of the power which can be legitimately exercised by society over the individual. A question seldom stated, and hardly ever discussed, in general terms, but which profoundly influences the practical controversies of the age by its latent presence, and is likely soon to make itself recognised as the vital question of the future. It is so far from being new, that, in a certain sense, it has divided mankind, almost from the remotest ages; but in the stage of progress into which the more civilized portions of the species have now entered, it presents itself under new conditions, and requires a different and more fundamental treatment.

The struggle between Liberty and Authority is the most conspicuous feature in the portions of history with which we are earliest familiar, particularly in that of Greece, Rome, and England. But in old times this contest was between subjects, or some classes of subjects, and the Government. By liberty, was meant protection against the tyranny of the political rulers. The rulers were conceived (except in some of the popular governments of Greece) as in a necessarily antagonistic position to the people whom they ruled. They consisted of a governing One, or a governing tribe or caste, who derived their authority from inheritance or conquest, who, at all events, did not hold it at the pleasure of the governed, and whose supremacy men did not venture, perhaps did not desire, to contest, whatever precautions might be taken against its oppressive exercise. Their power was regarded as necessary, but also as highly dangerous; as a weapon which they would attempt to use against their subjects, no less than against external enemies. To prevent the weaker members of the community from being preyed upon by innumerable vultures, it was needful that there should be an animal of prey stronger than the rest, commissioned to keep them down. But as the king of the vultures would be no less bent upon preying on the flock than any of the minor harpies, it was indispensable to be in a perpetual attitude of defence against his beak and claws. The aim, therefore, of patriots was to set limits to the power which the ruler should be suffered to exercise over the community; and this limitation was what they meant by liberty. It was attempted in two ways. First, by obtaining a recognition of certain immunities, called political liberties or rights, which it was to be regarded as a breach of duty in the ruler to infringe, and which, if he did infringe, specific resistance, or general rebellion, was held to be justifiable. A second, and generally a later expedient, was the establishment of constitutional checks, by which the consent of the community, or of a body of some sort, supposed to represent its interests, was made a necessary condition to some of the more important acts of the governing power. To the first of these modes of limitation, the ruling power, in most European countries, was compelled, more or less, to submit. It was not so with the second; and, to attain this, or when already in some degree possessed, to attain it more completely, became everywhere the principal object of the lovers of liberty. And so long as mankind were content to combat one enemy by another, and to be ruled by a master, on condition of being guaranteed more or less efficaciously against his tyranny, they did not carry their aspirations beyond this point.

A time, however, came, in the progress of human affairs, when men ceased to think it a necessity of nature that their governors should be an independent power, opposed in interest to themselves. It appeared to them much better that the various magistrates of the State should be their tenants or delegates, revocable at their pleasure. In that way alone, it seemed, could they have complete security that the powers of government would never be abused to their disadvantage. By degrees this new demand for elective and temporary rulers became the prominent object of the exertions of the popular party, wherever any such party existed; and superseded, to a considerable extent, the previous efforts to limit the power of rulers. As the struggle proceeded for making the ruling power emanate from the periodical choice of the ruled, some persons began to think that too much importance had been attached to the limitation of the power itself. That (it might seem) was a resource against rulers whose interests were habitually opposed to those of the people. What was now wanted was, that the rulers should be identified with the people; that their interest and will should be the interest and will of the nation. The nation did not need to be protected against its own will. There was no fear of its tyrannizing over itself. Let the rulers be effectually responsible to it, promptly removable by it, and it could afford to trust them with power of which it could itself dictate the use to be made. Their power was but the nation’s own power, concentrated, and in a form convenient for exercise. This mode of thought, or rather perhaps of feeling, was common among the last generation of European liberalism, in the Continental section of which it still apparently predominates. Those who admit any limit to what a government may do, except in the case of such governments as they think ought not to exist, stand out as brilliant exceptions among the political thinkers of the Continent. A similar tone of sentiment might by this time have been prevalent in our own country, if the circumstances which for a time encouraged it, had continued unaltered.

But, in political and philosophical theories, as well as in persons, success discloses faults and infirmities which failure might have concealed from observation. The notion, that the people have no need to limit their power over themselves, might seem axiomatic, when popular government was a thing only dreamed about, or read of as having existed at some distant period of the past. Neither was that notion necessarily disturbed by such temporary aberrations as those of the French Revolution, the worst of which were the work of an usurping few, and which, in any case, belonged, not to the permanent working of popular institutions, but to a sudden and convulsive outbreak against monarchical and aristocratic despotism. In time, however, a democratic republic came to occupy a large portion of the earth’s surface, and made itself felt as one of the most powerful members of the community of nations; and elective and responsible government became subject to the observations and criticisms which wait upon a great existing fact. It was now perceived that such phrases as ‘ self-government/ and ‘ the power of the people over themselves,’ do not express the true state of the case. The ‘people’ who exercise the power are not always the same people with those over whom it is exercised; and the ‘self-government’ spoken of is not the government of each by himself, but of each by all the rest. The will of the people, moreover, practically means the will of the most numerous or the most active part of the people; the majority, or those who succeed in making themselves accepted as the majority; the people, consequently, may desire to oppress a part of their number; and precautions are as much needed against this as against any other abuse of power. The limitation, therefore, of the power of government over individuals loses none of its importance when the holders of power are regularly accountable to the community, that is, to the strongest party therein. This view of things, recommending itself equally to the intelligence of thinkers and to the inclination of those important classes in European society to whose real or supposed interests democracy is adverse, has had no difficulty in establishing itself; and in political speculations the tyranny of the majority’ is now generally included among the evils against which society requires to be on its guard.

Like other tyrannies, the tyranny of the majority was at first, and is still vulgarly, held in dread, chiefly as operating through the acts of the public authorities. But reflecting persons perceived that when society is itself the tyrant—society collectively, over the separate individuals who compose it—its means of tyrannizing are not restricted to the acts which it may do by the hands of its political functionaries. Society can and does execute its own mandates: and if it issues wrong mandates instead of right, or any mandates at all in things with which it ought not to meddle, it practises a social tyranny more formidable than many kinds of political oppression, since, though not usually upheld by such extreme penalties, it leaves fewer means of escape, penetrating much more deeply into the details of life, and enslaving the soul itself. Protection, therefore, against the tyranny of the magistrate is not enough: there needs protection also against the tyranny of the prevailing opinion and feeling; against the tendency of society to impose, by other means than civil penalties, its own ideas and practices as rules of conduct on those who dissent from them; to fetter the development, and, if possible, prevent the formation, of any individuality not in harmony with its ways, and compel all characters to fashion themselves upon the model of its own. There is a limit to the legitimate interference of collective opinion with individual independence: and to find that limit, and maintain it against encroachment, is as indispensable to a good condition of human affairs, as protection against political despotism.

But though this proposition is not likely to be contested in general terms, the practical question, where to place the limit—how to make the fitting adjustment between individual independence and social control—is a subject on which nearly everything remains to be done. All that makes existence valuable to any one, depends on the enforcement of restraints upon the actions of other people. Some rules of conduct, therefore, must be imposed, by law in the first place, and by opinion on many things which are not fit subjects for the operation of law. What these rules should be, is the principal question in human affairs; but if we except a few of the most obvious cases, it is one of those which least progress has been made in resolving. No two ages, and scarcely any two countries, have decided it alike; and the decision of one age or country is a wonder to another. Yet the people of any given age and country no more suspect any difficulty in it, than if it were a subject on which mankind had always been agreed. The rules which obtain among themselves appear to them self-evident and self-justifying. This all but universal illusion is one of the examples of the magical influence of custom, which is not only, as the proverb says, a second nature, but is continually mistaken for the first. The effect of custom, in preventing any misgiving respecting the rules of conduct which mankind impose on one another, is all the more complete because the subject is one on which it is not generally considered necessary that reasons should be given, either by one person to others, or by each to himself. People are accustomed to believe, and have been encouraged in the belief by some who aspire to the character of philosophers, that their feelings, on subjects of this nature, are better than reasons, and render reasons unnecessary. The practical principle which guides them to their opinions on the regulation of human conduct, is the feeling in each person’s mind that everybody should be required to act as he, and those with whom he sympathizes, would like them to act. No one, indeed, acknowledges to himself that his standard of judgment is his own liking; but an opinion on a point of conduct, not supported by reasons, can only count as one person’s preference; and if the reasons, when given, are a mere appeal to a similar preference felt by other people, it is still only many people’s liking instead of one. To an ordinary man, however, his own preference, thus supported, is not only a perfectly satisfactory reason, but the only one he generally has for any of his notions of morality, taste, or propriety, which are not expressly written in his religious creed; and his chief guide in the interpretation even of that. Men’s opinions, accordingly, on what is laudable or blameable, are affected by all the multifarious causes which influence their wishes in regard to the conduct of others, and which are as numerous as those which determine their wishes on any other subject. Sometimes their reason—at other times their prejudices or superstitions: often their social affections, not seldom their antisocial ones, their envy or jealousy, their arrogance or contemptuousness: but most commonly, their desires or fears for themselves— their legitimate or illegitimate self-interest. Wherever there is an ascendant class, a large portion of the morality of the country emanates from its class interests, and its feelings of class superiority. The morality between Spartans and Helots, between planters and negroes, between princes and subjects, between nobles and roturiers, between men and women, has been for the most part the creation of these class interests and feelings: and the sentiments thus generated, react in turn upon the moral feelings of the members of the ascendant class, in their relations among themselves. Where, on the other hand, a class, formerly ascendant, has lost its ascendancy, or where its ascendancy is unpopular, the prevailing moral sentiments frequently bear the impress of an impatient dislike of superiority. Another grand determining principle of the rules of conduct, both in act and forbearance, which have been enforced by law or opinion, has been the servility of mankind towards the supposed preferences or aversions of their temporal masters, or of their gods. This servility, though essentially selfish, is not hypocrisy; it gives rise to perfectly genuine sentiments of abhorrence; it made men burn magicians and heretics. Among so many baser influences, the general and obvious interests of society have of course had a share, and a large one, in the direction of the moral sentiments: less, however, as a matter of reason, and on their own account, than as a consequence of the sympathies and antipathies which grew out of them: and sympathies and antipathies which had little or nothing to do with the interests of society, have made themselves felt in the establishment of moralities with quite as great force.

The likings and dislikings of society, or of some powerful portion of it, are thus the main thing which has practically determined the rules laid down for general observance, under the penalties of law or opinion. And in general, those who have been in advance of society in thought and feeling, have left this condition of things unassailed in principle, however they may have come into conflict with it in some of its details. They have occupied themselves rather in inquiring what things society ought to like or dislike, than in questioning whether its likings or dislikings should be a law to individuals. They preferred endeavouring to alter the feelings of mankind on the particular points on which they were themselves heretical, rather than make common cause in defence of freedom, with heretics generally. The only case in which the higher ground has been taken on principle and maintained with consistency, by any but an individual here and there, is that of religious belief: a case instructive in many ways, and not least so as forming a most striking instance of the fallibility of what is called the moral sense: for the odium theologicum, in a sincere bigot, is one of the most unequivocal cases of moral feeling. Those who first broke the yoke of what called itself the Universal Church, were in general as little willing to permit difference of religious opinion as that church itself. But when the heat of the conflict was over, without giving a complete victory to any party, and each church or sect was reduced to limit its hopes to retaining possession of the ground it already occupied; minorities, seeing that they had no chance of becoming majorities, were under the necessity of pleading to those whom they could not convert, for permission to differ. It is accordingly on this battle field, almost solely, that the rights of the individual against society have been asserted on broad grounds of principle, and the claim of society to exercise authority over dissentients, openly controverted. The great writers to whom the world owes what religious liberty it possesses, have mostly asserted freedom of conscience as an indefeasible right, and denied absolutely that a human being is accountable to others for his religious belief. Yet so natural to mankind is intolerance in whatever they really care about, that religious freedom has hardly anywhere been practically realized, except where religious indifference, which dislikes to have its peace disturbed by theological quarrels, has added its weight to the scale. In the minds of almost all religious persons, even in the most tolerant countries, the duty of toleration is admitted with tacit reserves. One person will bear with dissent in matters of church government, but not of dogma; another can tolerate everybody, short of a Papist or an Unitarian; another, everyone who believes in revealed religion; a few extend their charity a little further, but stop at the belief in a God and in a future state. Wherever the sentiment of the majority is still genuine and intense, it is found to have abated little of its claim to be obeyed.

In England, from the peculiar circumstances of our political history, though the yoke of opinion is perhaps heavier, that of law is lighter, than in most other countries of Europe; and there is considerable jealousy of direct interference, by the legislative or the executive power, with private conduct; not so much from any just regard for the independence of the individual, as from the still subsisting habit of looking on the government as representing an opposite interest to the public. The majority have not yet learnt to feel the power of the government their power, or its opinions their opinions. When they do so, individual liberty will probably be as much exposed to invasion from the government, as it already is from public opinion. But, as yet, there is a considerable amount of feeling ready to be called forth against any attempt of the law to control individuals in things in which they have not hitherto been accustomed to be controlled by it; and this with very little discrimination as to whether the matter is, or is not, within the legitimate sphere of legal control; insomuch that the feeling, highly salutary on the whole, is perhaps quite as often misplaced as well grounded in the particular instances of its application. There is, in fact, no recognised principle by which the propriety or impropriety of government interference is customarily tested. People decide according to their personal preferences. Some, whenever they see any good to be done, or evil to be remedied, would willingly instigate the government to undertake the business; while others prefer to bear almost any amount of social evil, rather than add one to the departments of human interests amenable to governmental control. And men range themselves on one or the other side in any particular case, according to this general direction of their sentiments; or according to the degree of interest which they feel in the particular thing which it is proposed that the government should do, or according to the belief they entertain that the government would, or would not, do it in the manner they prefer; but very rarely on account of any opinion to which they consistently adhere, as to what things are fit to be done by a government. And it seems to me that in consequence of this absence of rule or principle, one side is at present as often wrong as the other; the interference of government is, with about equal frequency, improperly invoked and improperly condemned.

The object of this Essay is to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties, or the moral coercion of public opinion. That principle is, that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with any evil in case he do otherwise. To justify that, the conduct from which it is desired to deter him, must be calculated to produce evil to someone else. The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.

It is, perhaps, hardly necessary to say that this doctrine is meant to apply only to human beings in the maturity of their faculties. We are not speaking of children, or of young persons below the age which the law may fix as that of manhood or womanhood. Those who are still in a state to require being taken care of by others, must be protected against their own actions as well as against external injury. For the same reason, we may leave out of consideration those backward states of society in which the race itself may be considered as in its nonage. The early difficulties in the way of spontaneous progress are so great, that there is seldom any choice of means for overcoming them; and a ruler full of the spirit of improvement is warranted in the use of any expedients that will attain an end, perhaps otherwise unattainable. Despotism is a legitimate mode of government in dealing with barbarians, provided the end be their improvement, and the means justified by actually effecting that end. Liberty, as a principle, has no application to any state of things anterior to the time when mankind have become capable of being improved by free and equal discussion. Until then, there is nothing for them but implicit obedience to an Akbar or a Charlemagne, if they are so fortunate as to find one. But as soon as mankind have attained the capacity of being guided to their own improvement by conviction or persuasion (a period long since reached in all nations with whom we need here concern ourselves), compulsion, either in the direct form or in that of pains and penalties for non-compliance, is no longer admissible as a means to their own good, and justifiable only for the security of others. It is proper to state that I forego any advantage which could be derived to my argument from the idea of abstract right, as a thing independent of utility. I regard utility as the ultimate appeal on all ethical questions; but it must be utility in the largest sense, grounded on the permanent interests of man as a progressive being. Those interests, I contend, authorize the subjection of individual spontaneity to external control, only in respect to those actions of each, which concern the interest of other people. If any one does an act hurtful to others, there is a primd facie case for punishing him, by law, or, where legal penalties are not safely applicable, by general disapprobation. There are also many positive acts for the benefit of others, which he may rightfully be compelled to perform; such as, to give evidence in a court of justice; to bear his fair share in the common defence, or in any other joint work necessary to the interest of the society of which he enjoys the protection; and to perform certain acts of individual beneficence, such as saving a fellowcreature’s life, or interposing to protect the defenceless against ill-usage, things which whenever it is obviously a man’s duty to do, he may rightfully be made responsible to society for not doing. A person may cause evil to others not only by his actions but by his inaction, and in either case he is justly accountable to them for the injury. The latter case, it is true, requires a much more cautious exercise of compulsion than the former. To make any one answerable for doing evil to others, is the rule; to make him answerable for not preventing evil, is, comparatively speaking, the exception. Yet there are many cases clear enough and grave enough to justify that exception. In all things which regard the external relations of the individual, he is dejure amenable to those whose interests are concerned, and if need be, to society as their protector. There are often good reasons for not holding him to the responsibility; but these reasons must arise from the special expediencies of the case: either because it is a kind of case in which he is on the whole likely to act better, when left to his own discretion, than when controlled in any way in which society have it in their power to control him; or because the attempt to exercise control would produce other evils, greater than those which it would prevent. When such reasons as these preclude the enforcement of responsibility, the conscience of the agent himself should step into the vacant judgment seat, and protect those interests of others which have no external protection; judging himself all the more rigidly, because the case does not admit of his being made accountable to the judgment of his fellow-creatures.

But there is a sphere of action in which society, as distinguished from the individual, has, if any, only an indirect interest; comprehending all that portion of a person’s life and conduct which affects only himself, or if it also affects others, only with their free, voluntary, and undeceived consent and participation. When I say only himself, I mean directly, and in the first instance: for whatever affects himself, may affect others through himself; and the objection which may be grounded on this contingency, will receive consideration in the sequel. This, then, is the appropriate region of human liberty. It comprises, first, the inward domain of consciousness; demanding liberty of conscience, in the most comprehensive sense; liberty of thought and feeling; absolute freedom of opinion and sentiment on all subjects, practical or speculative, scientific, moral, or theological. The liberty of expressing and publishing opinions may seem to fall under a different principle, since it belongs to that part of the conduct of an individual which concerns other people; but, being almost of as much importance as the liberty of thought itself, and resting in great part on the same reasons, is practically inseparable from it. Secondly, the principle requires liberty of tastes and pursuits; of framing the plan of our life to suit our own character; of doing as we like, subject to such consequences as may follow: without impediment from our fellow-creatures, so long as what we do does not harm them, even though they should think our conduct foolish, perverse, or wrong. Thirdly, from this liberty of each individual, follows the liberty, within the same limits, of combination among individuals; freedom to unite, for any purpose not involving harm to others: the persons combining being supposed to be of full age, and not forced or deceived.

No society in which these liberties are not, on the whole, respected, is free, whatever may be its form of government; and none is completely free in which they do not exist absolute and unqualified. The only freedom which deserves the name, is that of pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs, or impede their efforts to obtain it. Each is the proper guardian of his own health, whether bodily, or mental and spiritual. Mankind are greater gainers by suffering each other to live as seems good to themselves, than by compelling each to live as seems good to the rest.

Though this doctrine is anything but new, and, to some persons, may have the air of a truism, there is no doctrine which stands more directly opposed to the general tendency of existing opinion and practice. Society has expended fully as much effort in the attempt (according to its lights) to compel people to conform to its notions of personal, as of social excellence. The ancient commonwealths thought themselves entitled to practise, and the ancient philosophers countenanced, the regulation of every part of private conduct by public authority, on the ground that the State had a deep interest in the whole bodily and mental discipline of every one of its citizens; a mode of thinking which may have been admissible in small republics surrounded by powerful enemies, in constant peril of being subverted by foreign attack or internal commotion, and to which even a short interval of relaxed energy and self-command might so easily be fatal, that they could not afford to wait for the salutary permanent effects of freedom. In the modern world, the greater size of political communities, and above all, the separation between spiritual and temporal authority (which placed the direction of men’s consciences in other hands than those which controlled their worldly affairs), prevented so great an interference by law in the details of private life; but the engines of moral repression have been wielded more strenuously against divergence from the reigning opinion in self-regarding, than even in social matters; religion, the most powerful of the elements which have entered into the formation of moral feeling, having almost always been governed either by the ambition of a hierarchy, seeking control over every department of human conduct, or by the spirit of Puritanism. And some of those modern reformers who have placed themselves in strongest opposition to the religions of the past, have been no way behind either churches or sects in their assertion of the right of spiritual domination: M. Comte, in particular, whose social system, as unfolded in his Systeme de Politique Positive, aims at establishing (though by moral more than by legal appliances) a despotism of society over the individual, surpassing anything contemplated in the political ideal of the most rigid disciplinarian among the ancient philosophers.

Apart from the peculiar tenets of individual thinkers, there is also in the world at large an increasing inclination to stretch unduly the powers of society over the individual, both by the force of opinion and even by that of legislation: and as the tendency of all the changes taking place in the world is to strengthen society, and diminish the power of the individual, this encroachment is not one of the evils which tend spontaneously to disappear, but, on the contrary, to grow more and more formidable. The disposition of mankind, whether as rulers or as fellowcitizens, to impose their own opinions and inclinations as a rule of conduct on others, is so energetically supported by some of the best and by some of the worst feelings incident to human nature, that it is hardly ever kept under restraint by anything but want of power; and as the power is not declining, but growing, unless a strong barrier of moral conviction can be raised against the mischief, we must expect, in the present circumstances of the world, to see it increase.

It will be convenient for the argument, if, instead of at once entering upon the general thesis, we confine ourselves in the first instance to a single branch of it, on which the principle here stated is, if not fully, yet to a certain point, recognised by the current opinions. This one branch is the Liberty of Thought: from which it is impossible to separate the cognate liberty of speaking and of writing. Although these liberties, to some considerable amount, form part of the political morality of all countries which profess religious toleration and free institutions, the grounds, both philosophical and practical, on which they rest, are perhaps not so familiar to the general mind, nor so thoroughly appreciated by many even of the leaders of opinion, as might have been expected. Those grounds, when rightly understood, are of much wider application than to only one division of the subject, and a thorough consideration of this part of the question will be found the best introduction to the remainder. Those to whom nothing which I am about to say will be new, may therefore, I hope, excuse me, if on a subject which for now three centuries has been so often discussed, I venture on one discussion more.

Hungarian President Louis Kossuth Concerning the Centralization of Power

LouisKossuthLajos Kossuth, [aka Louis] the Hungarian political reformer and leader of the 1848-1849 revolution for Hungarian independence, was one of the greatest statesmen and orators of the mid 19th century. He was a prominent figure, well known in the United States and Europe for his leadership of the democratic forces who sought Hungarian independence from Austrian domination. During his exile, [See the rest of his bio below speech] he toured the United States in 1851-1852, American journalist Horace Greeley said of Kossuth: “Among the orators, patriots, statesmen, exiles, he has, living or dead, no superior.”

Speech at a Washington Banquet, Jan. 6th, 1852, The Banquet given by a large number of the Members of the two Houses of Congress to Kossuth took place at the National Hotel, in Washington City. The number present was about two hundred and fifty. The Hon. Wm. R. King, of Alabama, president of the Senate, presided. On his right sat Louis Kossuth, and on his left the Hon. Daniel Webster, Secretary of State. On the right of Kossuth1 at the same table, sat the Hon. Linn Boyd, speaker” of the House of Representatives. Besides other distinguished guests who responded to toasts, are named Hon. Thomas Corwin, Secretary of the Treasury, and Hon. Alex. H. H. Stuart, Secretary of the Interior. Also in attendance were Judge Wayne, of the Supreme Court of the United States; Mr. Stanton, of Tennessee; General Shields, Senator for Illinois, Chairman of the Committee of Military Affairs in the Senate; and many other dignitaries of the United States.

NOVELTIES IN AMERICAN REPUBLICANISM

Sir, though I have a noble pride in my principles, and the inspiration of a just cause, still I have also the consciousness of my personal insignificance. Never will I forget what is due from me to the Sovereign Source [referring to the Hungarian people] of my public capacity. This I owe to my nation’s dignity; and therefore, respectfully thanking this highly distinguished assembly in my country’s name, I have the boldness to say that Hungary well deserves your sympathy; that Hungary has a claim to protection, because it has a claim to justice. But as to myself, I am well aware that in all these honours I have no personal share. Nay, I know that even that which might seem to be personal in your toast, is only an acknowledgment of a historical fact, very instructively connected with a principle valuable and dear to every republican heart in the United States of America. As to ambition, I indeed never was able to understand how anybody can love ambition more than liberty. But I am glad to state a historical fact, as a principal demonstration of that influence which institutions exercise upon the character of nations.

We Hungarians are very fond of the principle of municipal self-government, and we have a natural horror against centralization. That fond attachment to municipal self-government, without which there is no provincial freedom possible, is a fundamental feature of our national character. We brought it with us from far Asia a “thousand years ago, and we preserved it throughout the vicissitudes of ten centuries. No nation has perhaps so much struggled and suffered for the civilized Christian world as we. We do not complain of this lot. It may be heavy, but it is not inglorious. Where the cradle of our Saviour stood, and where His divine doctrine was founded, there now another faith rules: the whole of Europe’s armed pilgrimage could not avert this fate from that sacred spot, nor stop the rushing waves of Islamism from absorbing the Christian empire of Constantine. We stopped those rushing waves. The breast of my nation proved a breakwater to them. We guarded Christendom, that Luthers and Calvins might reform it. It was a dangerous time, and its dangers often placed the confidence of all my nation into one man’s hand. But there was not a single instance in our history where a man honoured by his people’s confidence deceived them for his own ambition. The man out of whom Russian diplomacy succeeded in making a murderer of his nation’s hopes, gained some victories when victories were the chief necessity of the moment, and at the head of an army, circumstances gave him the ability to ruin his country; but he never had the people’s confidence. So even he is no contradiction to the historical truth, that no Hungarian whom his nation honoured with its confidence was ever seduced by ambition to become dangerous to his country’s liberty. That is a remarkable fact, and yet it is not accidental; it springs from the proper influence of institutions upon the national character. Our nation, through all its history, was educated in the school of local self-government; and in such a country, grasping ambition having no field, has no place in man’s character.

The truth of this doctrine becomes yet more illustrated by a quite contrary historical fact in France. Whatever have been the changes of government in that great country—and many they have been, to be sure—we have seen a Convention, a Directorate, Consuls, and one Consul, and an Emperor, and the Restoration, and the Citizen King, and the Republic; through all these different experiments centralization was the keynote of the institutions of France—power always centralized; omnipotence always vested somewhere. And, remarkable indeed, France has never yet raised one single man to the seat of power, who has not sacrificed his country’s freedom to his personal ambition!

It is sorrowful indeed, but it is natural. It is in the garden of centralization that the venomous plant of ambition thrives. I dare confidently affirm, that in your great country there exists not a single man through whose brains has ever passed the thought, that he would wish to raise the seat of his ambition upon the ruins of your country’s liberty, if he could. Such a wish is impossible in the United States. Institutions react upon the character of nations. He who sows wind will reap storm. History is the revelation of Providence. The Almighty rules by eternal laws not only the material but also the moral world; and as every law is a principle, so every principle is a law. Men as well as nations are endowed with free-will to choose a principle, but, that once chosen, the consequences must be accepted. , With self-government is freedom, and with freedom is justice and patriotism. With centralization is ambition, and with ambition dwells despotism. Happy your great country, sir, for being so warmly attached to that great principle of self-government. Upon this foundation your fathers raised a home to freedom more glorious than the world has ever seen. Upon this foundation you have developed it to a living wonder of the world. Happy your great country, sir! that it was selected by the blessing of the Lord to prove the glorious practicability of a federative union of many sovereign States, all preserving their State-rights and their self-government, and yet united in one—every star beaming with its own lustre, but altogether one constellation on mankind’s canopy.

Upon this foundation your free country has grown to a prodigious power in a surprisingly brief period, a power which attracts by its fundamental principle. You have conquered by it more in seventy-five years than Rome by arms in centuries. Your principles will conquer the world. By the glorious example of your freedom, welfare, and security, mankind is about to become conscious of its aim. The lesson you give to humanity will not be lost. The respect for State-rights in the Federal Government of America, and in its several States, will become an instructive example for universal toleration, forbearance, and justice to the future States, and Republics of Europe. Upon this basis those mischievous questions of language-nationalities will be got rid of, which cunning despotism has raised in Europe to murder liberty. Smaller States will find security in the principle of federative union, while they will preserve their national freedom by the principle of sovereign self-government; and while larger States, abdicating the principle of centralization, will cease to be a blood-field to unscrupulous usurpation and a tool to the ambition of wicked men, municipal institutions will ensure the development of local elements; freedom, formerly an abstract political theory, will be brought to every municipal hearth; and out of the welfare and contentment of all parts will flow happiness, peace, and security for the whole.

That is my confident hope. Then will the fluctuations of Germany’s fate at once subside. It will become the heart of Europe, not by melting North Germany into a Southern frame, or the South into a Northern; not by absorbing historical peculiarities into a centralized omnipotence; not by mixing all in one State, but by federating several sovereign States into a Union like yours.

Upon a similar basis will take place, the national regeneration of Slavonic States, and not upon the sacrilegious idea of Panslavism [a political and cultural movement originally emphasizing the cultural ties between the Slavic peoples but later associated with Russian expansionism], which means the omnipotence of the Czar. Upon a similar basis shall we see fair Italy independent and free. Not unity, but union will and must become the watchword of national members, hitherto torn rudely asunder by provincial rivalries, out of which a crowd of despots and common servitude arose. In truth it will be a noble joy to your great Republic to feel that the moral influence of your glorious example has worked this happy development in mankind’s destiny; nor have I the slightest doubt of the efficacy of that example.

But there is one thing indispensable to it, without which there is no hope for this happy issue. It is, that the oppressed nations of Europe become the masters of their future, free to regulate their own domestic concerns. And to this nothing is wanted but to have that “fair play” to all, for all, which you, sir, in your toast, were pleased to pronounce as a right of my nation, alike sanctioned by the law of nations as by the dictates of eternal justice. Without this “fair play” there is no hope for Europe—no hope of seeing your principles spread.

Yours is a happy country, gentlemen. You had more than fair play. You had active and effectual aid from Europe in your struggle for independence, which, once achieved, you used so wisely as to become a prodigy of freedom and welfare, and a lesson of life to nations.

But we in Europe—we, unhappily, have no such fair play. With us, against every pulsation of liberty all despots are united in a common league; and you may be sure that despots will never yield to the moral influence of your great example. They hate the very existence of this example. It is the sorrow of their thoughts, and the incubus of their dreams. To stop its moral influence abroad, and to check its spread at home, is what they wish, instead of yielding to its influence.

We shall have no fair play. The Cossack already rules, by Louis Napoleon’s usurpation, to the very borders of the Atlantic Ocean. One of your great statesmen—now, to my deep sorrow, bound to the sick bed of far advanced age [Henry Clay]— (alas! that I am deprived of the advice which his wisdom could have imparted to me)—your great statesman told the world thirty years ago that Paris was transferred to St. Petersburg. What would he now say, when St. Petersburg is transferred to Paris, and Europe is but an appendage to Russia?

Alas! Europe can no longer secure to Europe fair play. England only remains; but even England casts a sorrowful glance over the waves. Still, we will stand our ground, “sink or swim, live or die.” You know the word; it is your own. We will follow it; it will be a bloody path to tread. Despots have conspired against the world. Terror spreads over Europe, and persecutes by way of anticipation. From Paris to Pesth [Pesth; Budapest The capital and largest city of Hungary] there is a gloomy silence, like the silence of nature before the terrors of a hurricane. It is a sensible silence, disturbed only by the thousandfold rattling of muskets by which Napoleon prepares to crush the people who gave him a home when he was an exile, and by the groans of new martyrs in Sicily, Milan, Vienna, and Pesth. The very sympathy which I met in England, and was expected to meet here, throws my sisters into the dungeons of Austria. Well, God’s will be done! The heart may break, but duty will be done. We will stand our place, though to us in Europe there be no “fair play.” But so much I hope, that no just man on earth can charge me with unbecoming arrogance, when here, on this soil of freedom, I kneel down and raise my prayer to God: “Almighty Father of Humanity, will thy merciful arm not raise up a power on earth to protect the law of nations when there are so many to violate it?” It is a prayer and nothing else. What would remain to the oppressed if they were not even permitted to pray? The rest is in the hand of God.

Sir, I most fervently thank you for the acknowledgment that my country has proved worthy to be free. Yes, gentlemen, I feel proud at my nation’s character, heroism, love of freedom and vitality; and I bow with reverential awe before the decree of Providence which has placed my country into a position such that, without its restoration to independence, there is no possibility for freedom and independence of nations on the European continent. Even what now in France is coming to pass proves the truth of this. Every disappointed hope with which Europe looked towards France is a decree more added to the importance of Hungary to the world. Upon our plains were fought the decisive battles for Christendom; there will be fought the decisive battle for the independence of nations, for State rights, for international law, and for democratic liberty. We will live free, or die like men; but should my people be doomed to die, it will be the first whose death will not be recorded as suicide, but as a martyrdom for the world, and future ages will mourn over the sad fate of the Magyar race, doomed to perish, not because we deserved it, but because in the nineteenth century there was nobody to protect ” the laws of nature and of nature’s God.”

But I look to the future with confidence and with hope. Manifold adversities could not fail to impress some mark of sorrow upon my heart, which is at least a guard against sanguine illusions. But I have a steady faith in principles. Once in my life indeed I was deplorably deceived in my anticipations, from supposing principle to exist in quarters where it did not. I did not count on generosity or chivalrous goodness from the governments of England and France, but I gave them credit for selfish and instinctive prudence. I supposed them to value Parliamentary Government, and to have foresight enough to know the alarming dangers to which they would be exposed, if they allowed the armed interference of Russia to overturn historical, limited, representative institutions. But France and England both proved to be blind, and deceived me. It was a horrible mistake, and has issued in a horrible result. The present condition of Europe, which ought to have been foreseen by those governments, exculpates me for having erred through expecting them to see their own interests. Well, there is a providence in every fact. Without this mistake the principles of American republicanism would for a long time yet not have found a fertile soil on that continent, where it was considered wisdom to belong to the French school. Now matters stand thus: that either the continent of Europe has no future at all, or this future is American republicanism. And who can believe that two hundred millions of that continent, which is the mother of such a civilization, are not to have any future at all? Such a doubt would be almost blasphemy against Providence. But there is a Providence indeed—a just, a bountiful Providence, and in it I trust, with all the piety of my religion. I dare to say my very self was an instrument of it. Even my being here, when four months ago I was yet a prisoner of the league of European despots in far Asia, and the sympathy which your glorious people honours me with, and the high benefit of the welcome of your Congress, and the honour to be your guest, to be the guest of your great Republic — I, a poor exile — is there not a very intelligible manifestation of Providence in it ? — the more, when I remember that the name of your guest is by the furious rage of the Austrian tyrant, nailed to the gallows.

I confidently trust that the nations of Europe have a future. I am aware that this future is vehemently resisted by the bayonets of absolutism; but I know that though bayonets may give a defence, they afford no seat to a prince. I trust in the future of my native land, because I know that it is worthy to have one, and that it is necessary to the destinies of humanity. I trust to the principles of republicanism; and, whatever may be my personal fate, so much I know, that my country will preserve to you and your glorious land an everlasting gratitude.

Continuation of Kossuth biography:

In 1832 he was designated a substitute to represent a local noble in the Hungarian Diet (national parliament). Kossuth, a prolific writer and editor, produced a record of the Diet’s proceeding as well as other newspapers and journals. In 1837, his advocacy of political reform and national independence led to his imprisonment for three years by the Austrian government. During his confinement, he taught himself English by studying the Bible and Shakespeare.

After his release from prison in 1840, Kossuth became the editor of the “Pesti Hirlap,” or Pest Journal. The Pest Journal advocated political reform and an independent legislature for Hungary. In 1847 Kossuth was elected to the Diet as a representative of the county of Pest. Kossuth continued to spread his ideas of independence, and individual liberty and made brilliant speeches demanding a constitution for Hungary. In 1848, Kossuth’s campaigns and demands earned Hungary its own separate constitution from Austria. After the new government was formed, Kossuth was named the Minister of Finance. Shortly thereafter, revolution broke out across Europe. On September 28, 1848, after five months of serving as the minister of Finance, he assumed full control of the revolution in Hungary. He gathered, strengthened, and armed his “revolutionary army.” Not satisfied with their autonomous constitution, he demanded his county’s independence from Austrian rule. In the spring of 1849, Kossuth rallied against the Habsburg monarchy. On April 14, 1849, the Hungarian Diet, inspired by Kossuth, proclaimed the complete independence of Hungary from Austria and deposed the Habsburg Dynasty. The Hungarian declaration of independence was influenced by the American document. At the same time the Diet elected Kossuth “governor-president” and charged him to render an account of his actions to the parliament. Hungary was the last bastion of the democratic revolutions of 1848 to remain standing against the forces of absolutism, and Hungarian developments were carefully followed with considerable sympathy by the governments and people of Europe and the United States.

The inability of the Austrian government to reestablish its authority was a great concern to the autocratic government of Russia. Czar Nicholas I offered to aid the Austrians in suppressing the Hungarian revolution and that offer was accepted by the Austrians. As a result the Russian imperial forces, allies to the Austrians, declared war on the Hungarian Republic. The Russian armies brought the revolution to a quick and bloody end.

After his defeat, Kossuth fled to Turkey where he spent two years in exile. The governments of Great Britain, The United States, and other West European nations successfully pressured the Turkish Sultan to refuse Austrian and Russian demands for Kossuth’s extradition. They were able to arrange for his departure from Turkey, and on September 10, 1851, he steamed from the Turkish port of Smyrna (now Izmir) aboard the U. S. Navy’s frigate Mississippi. After brief stops in France and Britain, he arrived in New York City on December 5, 1851, to great public acclaim. His triumphant six-month tour throughout the United States was an unprecedented popular success.

Although Kossuth did not achieve his goal of winning official United States government support and recognition for continuing his struggle for Hungarian independence, his visit did leave a permanent legacy in America. He gave several hundred speeches in all parts of the United States, including separate addresses to both Houses of Congress. During this tour 250 poems, dozens of books, hundreds of pamphlets, and thousands of editorials were written about him and his democratic ideals.

He left the United States after six months, returning to Europe in July 1852 to rally support for the Hungarian cause. He lived for a period of time in London, and eventually settled in Turin, Italy. In exile he continued his efforts for Hungarian independence, but he did not return to Hungary.

Following his death in Turin on March 20, 1894, his body was returned to Hungary, where he was buried amid nationwide mourning. After his death, Kossuth continued as the popular symbol of the aspiration of the Hungarian people for independence.

Today there are many reminders of Kossuth’s impact on the Unites States of America. There are towns with his name in Indiana, Ohio and Mississippi, and a settlement with a Post office in Pennsylvania. Previous to today there were two other full figure Kossuth statues in the United States, in New York City, New York and Cleveland, Ohio.

And, of course, there is Kossuth County, Iowa where the impact of Kossuth is noted throughout the county with the name Kossuth appearing on buildings and streets in all parts of the county. Kossuth County now has the third full figure statue of Lajos Kossuth in the United States. The statue of Lajos Kossuth, being dedicated today, is not only a reminder of the Hungarian struggle for independence but it is also a reminder of our own United States democracy that Lajos Kossuth idealized so much.

Biography source: Kossuth County Iowa; http://www.kossuth-edc.com/community/kossuthbio.htm
Speech Source: Select Speeches of Kossuth; by Lajos Kossuth, Francis William Newman: published 1855

GRIEVANCES OF THE COLONISTS TO THE BRITISH GOVERNMENT by Richard Henry Lee 1775

rhenryleeGrievances Of The Colonists To The British Government by Richard Henry Lee (Cicero of America)

Born In Stratford, Va., 1788. Died at Chantilly, Va., 1794

THE COLONIES TO THE MOTHER COUNTRY.
[From the Address adopted by Congress, July 8, 1775.]

AFTER the most valuable right of legislation was infringed; when the powers assumed by your Parliament, in which we are not represented, and from our local and other circumstances cannot properly be represented, rendered our property precarious; after being denied that mode of trial to which we have long been indebted for the safety of our persons and the preservation of our liberties; after being in many instances divested of those laws which were transmitted to us by our common ancestors, and subjected to an arbitrary code, compiled under the auspices of Roman tyrants; after those charters, which encouraged our predecessors to brave death and danger in every shape, on unknown seas, in deserts unexplored, amidst barbarous and inhospitable nations, were annulled; when, without the form of trial, without a public accusation, whole colonies were condemned, their trade destroyed, their inhabitants impoverished; when soldiers were encouraged to imbrue their hands in the blood of Americans, by offers of impunity; when new modes of trial were instituted for the ruin of the accused, where the charge carried with it the horrors of conviction; when a despotic government was established in a neighboring province, and its limits extended to every part of our frontiers; we little imagined that anything could be added to this black catalogue of unprovoked injuries: but we have unhappily been deceived, and the late measures of the British ministry fully convince us, that their object is the reduction of these colonies to slavery and ruin. ….

If still you retain those sentiments of compassion by which Britons have ever been distinguished; if the humanity which tempered the valor of our common ancestors has not degenerated into cruelty, you will lament the miseries of their descendants.

To what are we to attribute this treatment? If to any secret principle of the constitution, let it be mentioned; let us learn that the government we have long revered is not without its defects, and that while it gives freedom to a part, it necessarily enslaves the remainder of the empire. If such a principle exists, why for ages has it ceased to operate? Why at this time is it called into action? Can no reason be assigned for this conduct? or must it be resolved into the wanton exercise of arbitrary power? And shall the descendants of Britons tamely submit to this? No, sirs! We never will; while we revere the memory of our gallant and virtuous ancestors, we never can surrender those glorious privileges for which they fought, bled, and conquered. Admit that your fleets could destroy our towns, and ravage our sea-coasts; these are inconsiderable objects, things of no moment to men whose bosoms glow with the ardor of liberty. We can retire beyond the reach of your navy, and, without any sensible diminution of the necessaries of life, enjoy a luxury, which from that period you will want—the luxury of being free.

We know the force of your arms, and was it called forth in the cause of justice and your country, we might dread the exertion; but will Britons fight under the banners of tyranny? Will they counteract the labors, and disgrace the victories of their ancestors? Will they forge chains for their posterity? If they descend to this unworthy task, will their swords retain their edge, their arms their accustomed vigor? Britons can never become the instruments of oppression, till they lose the spirit of freedom, by which alone they are invincible.

Our enemies charge us with sedition. In what does it consist? In our refusal to submit to unwarrantable acts of injustice and cruelty? If So, show us a period in your history in which you have not been equally seditious. We are accused of aiming at independence; but how is this accusation supported? By the allegations of your ministers—not by our actions. Abused, insulted, and contemned, what steps have we pursued to obtain redress? We have carried our dutiful petitions to the throne. We have applied to your justice for relief. We have retrenched our luxury, and withheld our trade. ….

The great bulwarks of our constitution we have desired to maintain by every temperate, by every peaceable means; but your ministers (equal foes to British and American freedom) have added to their former oppressions an attempt to reduce us, by the sword, to a base and abject submission. On the sword, therefore, we are compelled to rely for protection. Should victory declare in your favor, yet men trained to arm3 from their infancy, and animated by the love of liberty, will afford neither a cheap nor easy conquest Of this, at least, we are assured, that our struggle will be glorious, our success certain; since even in death we shall find that freedom which in life you forbid us to enjoy.

Let us now ask, What advantages are to attend our reduction? The trade of a ruined and desolate country is always inconsiderable, its revenue trifling; the expense of subjecting and retaining it in subjection, certain and inevitable. What then remains but the gratification of an ill-judged pride, or the hope of rendering us subservient to designs on your liberty?

Soldiers who have sheathed their swords in the bowels of their American brethren, will not draw them with more reluctance against you. When too late, you may lament the loss of that freedom which we exhort you, while still in your power, to preserve.

On the other hand, should you prove unsuccessful; should that connection which we most ardently wish to maintain, be dissolved; should your ministers exhaust your treasures, and waste the blood of your countrymen in vain attempts on our liberty, do they not deliver you, weak and defenceless, to your natural enemies?

Since, then, your liberty must be the price of your victories, your ruin of your defeat—what blind fatality can urge you to a pursuit destructive of all that Britons hold dear?

If you have no regard to the connection which has for ages subsisted between us; if you have forgot the wounds we have received fighting by your side for the extension of the empire; if our commerce is not an object below your consideration; if justice and humanity have lost their influence on your hearts, still motives are not wanting to excite your indignation at the measures now pursued. Your wealth, your honor, your liberty are at stake.

OF THE RIGHT TO FREEDOM; AND OF TRAITORS by John Dickinson 1732-1808

Henry Dont Tread FlagOF THE RIGHT TO FREEDOM; AND OF TRAITORS.
[by John Dickinson 1732-1808]

KINGS or parliaments could not give the rights essential to happiness, as you confess those invaded by the Stamp Act to be. We claim them from a higher source—from the King of kings, and Lord of all the earth. They are not annexed to us by parchments and seals . They are created in us by the decrees of Providence which establish the laws of our nature . They are born with us; exist with us; and cannot be taken from us by any human power, without taking our lives. In short, they are founded on the immutable maxims of reason and justice . It would be an insult on the divine Majesty to say, that he has given or allowed any man or body of men a right to make me miserable. If no man or body of men has such a right, I have a right to be happy. If there can be no happiness without freedom, I have a right to be free. If I cannot enjoy freedom without security of property, I have a right to be thus secured. If my property cannot be secure, in case others over whom I have no kind of influence may take it from me by taxes under pretence of the public good, and, for enforcing their demands, may subject me to arbitrary, expensive, and remote jurisdictions, I have an exclusive right to lay taxes on my own property either by myself or those I can trust; of necessity to judge in such instances of the public good; and to be exempt from such jurisdictions. ….

Galatians_5-1Every man must remember, how, immediately after the tempest of the late war was laid, another storm began to gather over North America. Every wind that blew across the Atlantic brought with it additional darkness. Every act of the administration seemed calculated to produce distress and to excite terror. We were alarmed—we were afflicted. Many of our colonies sent home petitions; others ordered their agents to make proper applications on their behalf. What was the effect? They were rejected without reading. They could not be presented, “without breaking through a rule of the house.” They insisted upon a right, that, it “was previously determined should not be admitted.” The language of the ministry was “that they would teach the insolent North Americans the respect due to the laws of their mother country.” They moved for a resolution “that the parliament could legally tax us.” It was made. For a bill; it was framed. For its dispatch; it was passed. The badges of our shame were prepared, too gross, too odious—even in the opinion of that administration—to be fastened upon us by any but Americans. Strange delusion! to imagine that treachery could reconcile us to slavery. They looked around; they found Americans—0 Virtue! they found Americans to whom the confidence of their country had committed the guardianship of her rights—on whom her bounty had bestowed all the wreck of her fortunes could afford—ready to rivet on their native land, the nurse of their infancy, the protectrix of their youth, the honorer of their manhood, the fatal fetters which their information had helped to forge. They were to be gratified with part of the plunder in oppressive offices for themselves and their creatures. By these, that they might reap the rewards of their corruption, were we advised—by these, that they might return masters who went out servants, were we desired—to put on the chains, and then with shackled hands to drudge in the dark, as well as we could, forgetting the light we had lost “If1forget thee, let my right hand forget her cunning—if I do not remember thee, may my tongue cleave to the roof of my mouth,”

“The highest glory of the American Revolution was this; 
it connected, in one indissoluble bond, the principles 
of civil government with the principles of Christianity.” 
quote John Quincy Adams

A DUTY TO POSTERITY
[From the Same.]

HONOR, justice and humanity call upon us to hold and to transmit to our posterity, that liberty, which we received from our ancestors. It is not our duty to leave wealth to our children; but it is our duty to leave liberty to them. No infamy, iniquity, or cruelty can exceed our own if we, born and educated in a country of freedom, entitled to its blessings and knowing their value, pusillanimously deserting the post assigned us by Divine Providence, surrender succeeding generations to a condition of wretchedness from which no human efforts, in all probability, will be sufficient to extricate them; the experience of all states mournfully demonstrating to us that when arbitrary power has been established over them, even the wisest and bravest nations that ever flourished have, in a few years, degenerated into abject and wretched vassals.

THE MEANING OF THE REVOLUTION and CONTROVERSY OF INDEPENDENCE

John_Witherspoon_by_Peale

 

See also: John Quincy Adams Speech on the Intent of the Declaration of Independence

Note: Politicians, Monarchs, Power Brokers, Despots and Tyrants; Small men with even smaller minds, suffering from overly inflated egos have never liked long, living without utter control over the people, we see this throughout history and we see this happening in America today. These same political power brokers and ruling class elites have worked for 200+ years trying to break that which became America. They have, up until recent generations been held at bay in America by the natural and religious goodness of her people and most of those in power. Who have had an ever watchful eye on those who would encroach upon our freedoms, liberties, free consciences and individual happiness, however over the last few decades the people have been lulled into a false sense of security by those in the ruling class elite. With all the distractions of the modern age, have come the ever over reaching hand of government, or the ruling class and now America unless her people awaken and rebel against the over reaching hand of the oppressors, we will once again be without a place in the world where people are or once were, truly free.

We must pray now, and pray always that God in his mercy will look down upon us and the world and preserve the freedoms he so graciously gave us at the beginning of time, not only for our benefit, but for the benefit of all mankind. May his hand, be the hand that guides us, protects us, strengthens us, and keeps us through the coming storms.

THE MEANING OF THE REVOLUTION. “On the Controversy about Independence.” by John Witherspoon between 1765-1787

EVERY one knows that when the claims of the British Parliament were openly made, and violently enforced, the most precise and determined resolutions were entered into, and published by every colony, every county, and almost every township or smaller district, that they would not submit to them. This was clearly expressed in the greatest part of them, and ought to be understood as the implied sense of them all, not only that they would not soon or easily, but that they would never on any event, submit to them . For my own part, I confess, I would never have signed these resolves at first, nor taken up arms in consequence of them afterward, if I had not been fully convinced, as I am still, that acquiescence in this usurped power would be followed by the total and absolute ruin of the colonies. They would have been no better than tributary states to a kingdom at a great distance from them. They would have been therefore, as has been the case with all states in a similar situation from the beginning of the world, the servants of servants from generation to generation. For this reason I declare it to have been my meaning, and I know it was the meaning of thousands more, that though we earnestly wished for reconciliation with safety to our liberties, yet we did deliberately prefer, not only the horrors of a civil war, not only the danger of anarchy, and the uncertainty of a new settlement, but even extermination itself, to slavery riveted on us and our posterity.

The most peaceable means were first used; but no relaxation could be obtained: one arbitrary and oppressive act followed after another; they destroyed the property of a whole capital—subverted to its very foundation the constitution and government of a whole colony, and granted the soldiers a liberty of murdering in all the colonies. I express it thus, because they were not to be called to account for it where it was committed, which everybody must allow was a temporary, and undoubtedly in ninety-nine cases of an hundred must have issued in a total impunity. There is one circumstance, however, in my opinion, much more curious than all the rest The reader will say, What can this be? It is the following, which I beg may be particularly attended to:—While all this was a doing, the King in his speeches, the Parliament in their acts, and the people of Great Britain in their addresses, never failed to extol their own lenity [kindness, gentleness]. I do not infer from this, that the King, Parliament and people of Great Britain are all barbarians and savages—the inference is unnecessary and unjust; but I infer the misery of the people of America, if they must submit in all cases whatsoever, to the decisions of a body of the sons of Adam, so distant from them, and who have an interest in oppressing them. It has been my opinion from the beginning, that we did not carry our reasoning fully home, when we complained of an arbitrary prince, or of the insolence, cruelty and obstinacy of Lord North, Lord Bute, or Lord Mansfield. What we have to fear, and what we have now to grapple with, is the ignorance, prejudice, partiality and injustice of human nature. Neither King nor ministry, could have done, nor durst have attempted what we have seen, if they had not had the nation on their side. The friends of America in England are few in number, and contemptible in influence; nor must I omit, that even of these few, not one, till very lately, ever reasoned the American cause upon its proper principles, or viewed it in its proper light

Petitions on petitions have been presented to King and Parliament, and an address sent to the people of Great Britain, which have been not merely fruitless, but treated with the highest degree of disdain. The conduct of the British ministry during the whole of this contest, as has been often observed, has been such, as to irritate the whole people of this continent to the highest degree, and unite them together by the firm bond of necessity and common interest In this respect they have served us in the most essential manner. I am firmly persuaded, that had the wisest heads in America met together to contrive what measures the ministry should follow to strengthen the American opposition and defeat their own designs, they could not have fallen upon a plan so effectual, as that which has been steadily pursued. One instance I cannot help mentioning, because it was both of more importance, and less to be expected than any other. When a majority of the New York Assembly, to their eternal infamy, attempted to break the union of the colonies, by refusing to approve the proceedings of the Congress, and applying to Parliament by separate petition—because they presumed to make mention of the principal grievance of taxation, it was treated with ineffable contempt I desire it may be observed, that all those who are called the friends of America in Parliament, pleaded strongly for receiving the New York petition; which plainly showed, that neither the one nor the other understood the state of affairs in America. Had the ministry been prudent, or the opposition successful, we had been ruined; but with what transport did every friend to American liberty hear, that these traitors to the common cause had met with the reception which they deserved.

The British Constitution: Delivered Before The Georgia Bar Association 1885 by John W. Park

Alexis-de-Tocqueville1Adding this article to help the American people better understand our history, heritage and the beginnings of America.

The British Constitution. Delivered Before The Georgia Bar Association, At Its Annual Session In Atlanta, Georgia, by John W. Park. (Published 1885 in “Report of the Annual Session of the Georgia Bar Association” By Georgia Bar Association, John Wesley Akin, Orville Augustus Park)

Mr, President and Gentlemen:

There are few subjects upon which more crude and incorrect opinions are entertained by the average American than that of the English government and the British Constitution. Justice proud of the free institutions of his own country, and cherishing the traditional prejudices of our revolutionary period, he is prone to regard the English government as a tyranny, and her monarch as a despot. Familiar with the idea of a written Constitution as the fundamental law of a republican state, he conceives that a government without such a Constitution or with an unwritten Constitution, virtually has none at all and is destitute of fundamental laws.

The Declaration of Independence, that terrible indictment against George III., is a convincing argument to him that the King, at least, was a tyrant. But how often are indictments preferred against the innocent! That instrument was framed to justify the authors of it in the opinions of their countrymen and of posterity; and was intended to present the cause of the colonies to the world in a way that would at once command attention, enlist sympathy and call forth admiration. Pardonable grounds, truly, for somewhat of exaggeration in so momentous a state paper!

Besides, this immortal paper, with laborious ability, heaps charge after charge upon the head of the King, ignoring alike his Ministers and his Parliaments. Whereas, by the theory of that government, the former were responsible for whatever was wrong in the executive administration, and the latter for whatsoever legislation was odious and oppressive. The theory of the colonists was, that their relation to the parent country was similar to that of Scotland and Ireland before their consolidation and respective unions—owing allegiance to the Crown, but having a right to separate legislative assemblies. They denied the power of Parliament to legislate for them; and no single act of the Parliament was more obnoxious than the one that relieved them from every burden, save the mere bagatelle of a tax of three pence a pound on tea; and it was so obnoxious because the preamble of that Act claimed the right to bind the colonies in all cases whatsoever. Independent, as they always claimed to be of Parliament, their only tie was to the King; this tie they determined to sunder [cut], and hence their charge of grievances was preferred against the King. The declaration makes no mention of Parliament, but holds up the King as the author of all their wrongs.

This theory of the colonists, which has been elaborately set forth in a speech of Daniel Webster, however correct it may have been, has greatly tended, in an instrument so widely read, to perpetuate among our people erroneous ideas of the powers of an English King. The truth is, as early as the reign of Henry the III., about 650 years ago, Bracton, afterwards an English Judge, had written—” The King is subject to God and the law.” “The King,” he says, “can do nothing on earth but what he can do by law.” He reckoned the great court of Parliament as his superior, and affirmed “that if the King were without a bridle, that is the law, they should put a bridle upon him.” Later, but far back in the reign of Henry VI., another Judge said, “If the King command me to arrest a man, and I arrest him, he shall have an action of false imprisonment against me, though it were done in the King’s presence.” And in the very next reign, that of Edward IV., a Chief Justice of England had declared to that monarch “That the King could not arrest a man even upon suspicion of felony or treason, because if he should wrong a man by such arrest, he can have no remedy against him.” And a long time after this, it is true, but still a hundred years before our revolution, after the old common law writ of habeas corpus, [1679, court order that requires a person under arrest to be brought before a judge or into court] had been perfected by the statute of 31st [year, in the reign of] Charles II., it has been impossible for anyone to be wrongfully imprisoned, though by warrant under the sign-manual [signature] of the King, without obtaining an almost immediate discharge. Such, and so small, has been for ages, a King of England’s legal power to inflict injury upon the persons of his subjects! The great right of property has been just as secure and for as long a period from any invasion at his hands. And his power to obstruct legislation and thus thwart the wishes of his people by the exercise of the veto; a power possessed by our Presidents and all of our Governors, and exercised by them time and again at almost every session of every legislative body throughout the land, has been employed by no English King since the reign of William of Orange; and its exercise now, in any case, would perhaps cost him his throne. Surely our American will concede, upon more study and reflection, that an English King is no despot, but simply the ruler of a very limited monarchy!

But in the next place, as to the British Constitution and her fundamental laws. If by Constitution our American means the name of an instrument or book containing the fundamental laws of the State, then indeed England has no Constitution, for she has no instrument or book of that name. Nor if the terms means a few pages of parchment or an instrument similar to our Federal and State Constitutions, containing the principles on which the government is founded and regulating the decisions of the sovereign powers, directing to what persons each of these powers is to be confided, and the manner it is to be exercised, then England has no Constitution. If, again, is meant, that modern idea of a Constitution, viz: “A body of law promulgated at once by the sovereign power,” as was for instance the Code Napoleon, then England has no Constitution. In the Roman sense, which during the empire denominated a single imperial decree a Constitution, England might be said to have as many Constitutions as were compiled in the Code of Theodosius. Not indeed, that her statute book abounds in imperial decrees, but because she has quite a number of Acts of Parliament of a fundamental or constitutional character.

If a Constitution is, as it has been defined, a system of law, established by the sovereign power of a State for its own guidance, fixing in those laws the limits and defining the relations of the legislative, the judicial and the executive powers of the State, both amongst themselves and with reference to the subjects or citizens of the State as a governed body”—then England has a Constitution, unwritten though it may be, and not embraced in any one statute, instrument or book. Sometimes the British Constitution is spoken of as a kind of intangible essence, the resultant of the manhood of the English people and the spirit of their laws. When employed in this sense, the same idea is conveyed to the mind, as when we speak of the constitution of a man, or that of a horse. At other times the British Constitution is declared to be the whole body of the public law, consuetudinary [customs, law where the rule of law is determined by long-standing custom as opposed to case law or statute] as well as statutory, which has grown up during the course of ages, and is continually being modified by the action of the general will, as interpreted and expressed by the representatives of the nation in Parliament.

The average American forgets, perhaps never knew, that the great body of the English common law, though unwritten, Lex non scripta,[Latin: The law was not written] is still in writing, and that the English Constitution is part of that common law. That the sovereignty or legislative power of England resides in Parliament, that Parliament consists of King, Lords and Commons; that the Crown is hereditary; that the King is the executive branch of the government; that he must govern according to law; that his prerogative stretcheth not to the doing of any wrong; that the King never dies; that he is the head of the army and declares war and makes peace; that he is the fountain of justice and appoints the Judges; that Parliament is summoned, prorogued and dissolved by the King; that it is supreme in the making and repealing of laws; that it can change its succession, and, in the language of Delome, do anything but make a man a woman and a woman a man; that each house is the judge of the qualification of its own members; that no member shall be held to answer in any other place, for words spoken in debate in either house, and the various privileges of Parliament and the manner of making laws; the right of the people to representation in Parliament; that no tax can be laid except by its authority, and a thousand and one other principles, embracing the absolute rights of every Englishman to personal security, personal liberty and private property, and the many provisions, including the sacred right of trial by jury, for their maintenance—although parts of an unwritten Constitution, are at the same time parts of the English common law, having their foundation in immemorial usage, and are laid down by the sages and institutional writers of that country with the same clearness and precision, as their classification of estates, the rules of inheritance or the requisites of a deed.

These maxims and laws, and others like these, dating back, many of them, a thousand years, to the age of Alfred, the builder, and Edward, the Confessor, the restorer of the English law, together with some constitutional laws, explanatory and declaratory of the Constitution, among the greater and more important of which may be reckoned Magna Carta, [1215, Latin: Great Charter, also called  Magna Carta Libertatum or The Great Charter of the Liberties of England] that great charter which was ratified and confirmed by Parliament, according to Sir Edward Coke, thirty-two several times; and one of the very confirmatory statutes, 25th [year, in the reign of] Edward I., which is called Kat’ezoxen, confirmatio cartarem; the Petition of Right [1628, Parliamentary declaration of the rights and liberties of the people] in the reign of Charles I.; the Habeas Corpus in that of Charles II.; the Bill of Rights, enacted into a statute in the reign of William and Mary, and the Act of Settlement in that of William III.—these are the fundamental laws of England, and form the skeleton of the British Constitution.

A Constitution not as harmonious and symmetrical indeed, as if it had sprung full grown, like Minerva, from the brain of Jove; spoken into existence by a single act of the legislative power, and all embraced in one separate instrument, but still, a Constitution, whose admirable provisions, for the security of life, liberty and property, far surpass anything that Greece or Rome ever saw. A Constitution which is the model of every free Constitution now existing in the world. A Constitution which provides for a House of Commons, that great matrix of liberty, which is at once the type and archetype of every free legislature that now meets in either hemisphere. A Constitution which confines all legislation to a parliament; which suffers no tax to be imposed save by a parliament; which requires its executive administration to be conducted according to the laws, and holds the agents and advisers of that administration responsible for every infraction of the laws.

That such a Constitution, a Constitution of freedom, whose origin is so remote as to be lost in the mists of antiquity, should have survived so many ages of ignorance and violence; should have constantly grown in all the attributes of perfection, until it became the pride of England, and the pattern of the world; should have flowed onward through the centuries, conferring the blessings of liberty and happiness upon a populous nation of prosperous subjects, is the peculiar glory of Englishmen, and the most beautiful phenomenon in the annals of the human race.

This Constitution, which had attained its full beauty and vigor a hundred years before our revolution, was justly prized as a rich heritage by our fathers. In the first Continental Congress, which satin Philadelphia, in 1774, a Declaration of Rights was passed, (which is sometimes assigned as a reason why our Federal Constitution is not preceded by a Bill of Rights). In this declaration, they claimed, as English colonists, under the principles of the English Constitution, that they were entitled to life, liberty and property, and to all the rights, liberties and immunities of free and natural born subjects within the realm of England; they claimed that the foundation of English liberty was a right in the people to participate in their legislative council, and as the Colonists were not, and could not, from their local circumstances, be properly represented in Parliament, that they were entitled to a free and exclusive power of legislation in their Provincial legislatures; they denied all power of taxation without representation; they claimed that they were entitled to the common law, and especially the great and inestimable privilege of being tried by their peers of the vicinage; they claimed to be entitled also to the benefit of such of the English statutes as existed at the time of their colonization, and which by experience were found to be appropriate to their local and other circumstances; they claimed the right of petition; denounced the keeping of a standing army in time of peace, as contrary to the Constitution; and affirmed that it was essential under the English Constitution, that the constituent branches of the legislature be independent of each other. All this they claimed, demanded and insisted on, as their indubitable rights of liberty. They were not claimed, by purchase, but by descent. They were not insisted on as an acquisition of their own; on the contrary, they were recognized by them as an inheritance from their British ancestors.

After this Declaration of Rights, came the Declaration of Independence, followed in its turn, by an eight years war, fought, as has been truly said, upon a preamble. When this war ended, and the thirteen Colonies were recognized as independent States, our fathers soon laid the foundation of our present government, by the foundation and adoption of the Federal Constitution—an instrument which is the pride of every true American, and upon which the world has bestowed the most lavish praise. But while engaged in this great work, notwithstanding the heat and hatred engendered by a cruel and protracted war, our fathers never forgot the free principles of the British Constitution under which they were born, but clung to them “as the sheet-anchor of their political safety.” They provided, as did their English fathers, for the distribution and independence of the three great forms of government: they made the Legislative to consist of two houses, the one of long term, the other of short term members, but both elective; they made the Executive a single head, but elective, instead of hereditary; the Judiciary held their offices as in England, quamdiu se bene gesserint.[ As long as he shall behave himself well.; A clause inserted in commissions, when such instruments were written in Latin] The general executive powers of the President, and the legislative powers of the Congress, with some modifications, mutatis mutandis, might have been written of an English King and House of Commons.

The mode of enacting laws, the privileges of the two Houses, and of the individual members, including the fundamental right of free speech, are almost transcripts from the English Constitution. The right to the writ of habeas corpus, to trial by jury in civil cases and review only by the rules of the common law; the rights of petition, to bear arms, to be secure against unreasonable searches and seizure; the rights of one accused of crime to presentment or indictment by a grand jury, to a speedy and public trial by an impartial jury, with timely information of the cause of accusation, to be confronted with witnesses against, and to have compulsory process for, those in his favor, with the benefit of counsel in such cases, all these were English constitutional rights, well settled a century before our Constitution was adopted; and some of them were even hoary with age, before the continent of America was discovered by Columbus. That it was illegal to quarter troops on the people, to compel one to testify against himself in a criminal cause, to take his property for even public use without just compensation, to impose excessive bail, or inflict cruel and unusual punishments, had all been learned by the framers of our Constitution from the English Common or Statute Law. The very definition of Treason in our Constitution, is taken from an English statute as old as the reign of Edward III.; and the rule of evidence on trials in such cases, from decisions of English courts under it, enacted into a statute in the days of the Third William. The right to investigate, and chastise abuses of administration, by impeachment, which impeachment should be made by the lower house and tried by the upper house, had existed in England since 1376, four hundred years before our Constitution embodied this form of procedure.

It will thus be seen, and the more critical the examination, the more fully it will appear that almost every precious principle of our Federal Constitution was borrowed, bodily, from the Constitution of England. The limits for this paper constrain us to speak in general terms. Of course the dissolution of Church and State; the inhibition of Bills of Attainder, and of the grant of titles of nobility, were improvements— steps forward in the direction of governmental progress. But the great engines of government in both countries, their fundamental principles of action, and the ends and aims of their creation, are almost identical; while the mere names of the respective officers who run the machine, the tenure by which they hold their trusts, and the appliances by which they are lifted into place are, in a measure, variant.

Would we then depreciate the great work of our fathers? Not at all. They builded a splendid temple to freedom; but they found the stones, ready hewn to their hands. Their own noble English fathers had, long beforehand, prepared the materials; and the glory of our fathers was, that in rearing and embellishing their own edifice, they had the wisdom to make those stones, which so many other Constitution builders had rejected, “the head of the corner “; and the glory of their children will be, to forever keep them there!

It may be out of place now, and, perhaps, will appear hypercritical in a matter of so little practical importance, but there is one power granted by our Constitution to Congress, that strikes us with some surprise, viz: the power to legislate in all cases whatsoever over the District, where should be located the seat of government, and over places purchased for forts, magazines, arsenals, dock-yards, etc. So soon, it seems, did our fathers forget the preamble to that Act of Parliament, upon which they had fought their revolution! As this power to legislate in all cases whatsoever, includes the power to tax, and has been construed to extend to the territories of the United States, and as no representation is provided for the District of Columbia, or the territories, the framers of the Constitution violated, in that instrument, the most fundamental principle of the revolution, by authorizing taxation without representation. In this particular, the framers of our Constitution were scarcely as considerate of the rights of others, as were the sturdy Barons at Runnymede, who wrested Magna Carta from King John. The rights which they claimed were not for themselves alone, but for all the nation at large. It was agreed, “that every liberty and custom which the King had granted to his tenants, as far as concerned him, should be observed by the clergy and laity towards their tenants, as far concerned them.” This equal distribution of civil rights to all classes of freemen, in the opinion of Hallam, constituted the peculiar beauty of that great charter. And Chatham thought sufficient justice could not be done the Barons, in not confirming this great acknowledgment of national rights to themselves, but in delivering it as a common blessing to the whole people. The three words of the charter, nullus liber homo,[a free man] that were so uncouth, and sounded so poorly in the ears of scholars, he declared, were worth all the classics!

It would be needless to say, that the Constitutions of the several States, like the Federal Constitution, were all modeled after the same great original. Those States which varied most, like Georgia, whose first Constitution provided for but one house of legislation, and for an executive council instead of a single administrative head, from the inconveniences resulting, were soon glad to retrace their steps.

The first Constitution of Georgia also declared, “That no clergyman of any denomination should be allowed a seat in the Legislature.” [possibly because of their stance against slavery, still researching] This deviation from the mother model, was either not so fundamental, or the inconveniences resulting were not so soon apparent, for it remained an article in our fundamental law for twenty-two years, and was not abrogated until she made her third Constitution, in 1798.

It would be interesting, not only to the antiquary but to the constitutional lawyer as well, to inquire into the original of the English Constitution; but we have not time to explore, if we could, these ancient springs, which Sir Matthew Hale regarded as undiscoverable as the sources of the Nile. Suffice it to say, that a few centuries after the Christian era, we find the elements of a free constitution—limitations on the royal authority, representative assemblies, fundamental laws. At the conquest almost all was lost; what remained was by the sufferance of William and his immediate successors. The second birth of English liberty came with John, and Magna Carta; and it is pleasant to think that this great charter is forever associated with the purity of home, and owes its origin to the love which the sturdy barons bore their families. The marriage of female wards, and the compulsory marriage of widows were grievous feudal hardships. But the barons suffered yet greater ills at the hands of John. He was the sum, of ever infamy while living; and when dead, a single sentence expressed the public abhorrence that clung to his name—”foul as hell is, it is itself defiled, by the fouler presence of John.” He was, withal, an accomplished villain, handsome in his person, fascinating in his manners, and with a strange gift, it is said, in winning the love of women. In his unbridled lust, he debauched the wives and daughters of the barons, and with singular imprudence, even in a king, boasted of the favors that he won! It was to avenge such injuries as these and to defend the honor of their homes, that the barons placing the Earl of Pembroke and the Archbishop of Canterbury at their head, marched against John and wrung from him with an iron hand, that charter, which forever after became the immovable foundation of English liberty, and an imperishable monument to themselves. Liberty was now no longer of free grace, it had become a matter of contract of covenant. And hereafter, when their rights were invaded, they ceased to implore as a favor the laws of Alfred and of Edward, but they demanded, again and again, as a right, the re-enactment and ratification of the great charter.

It would be a pleasant task to examine the various causes which have contributed to perpetuate, for so long a period, English liberty, or the English Constitution, for they are in fact convertible terms. We can glance for but a moment at some of them. England owes much to her insular position, which has obviated the necessity of a standing army. Largo standing armies, in time of peace, had swept away in Western Europe, a number of free Constitutions, somewhat similar to her own. The English were wise enough to be warned by examples, and they set their faces like flint against this auxiliary of despotism.

But much as she owes to her insular position, she has owed far more to the lofty and intrepid spirit of her people, and their devotion to her laws, a devotion born of the excellence of those laws. I have already stated that Magna Carta was confirmed thirty-two times by Parliament. It was actually re-enacted eleven times, during the reign of one ambitious and warlike Prince, Edward III. Can all history furnish another such example of devotion to human rights!

Obsta principiis, [Latin: Resist the beginnings, or Slang: nip in the bud] seems to have been the great maxim of their political faith; and they appear to have known from intuition, what the experience of ages, has at last taught mankind that, “eternal vigilance is the price of liberty.” They were, it is true, frequently overborne, and their laws trampled underfoot; but when the elements appeared darkest the national spirit would again flame forth; at one time dethroning and imprisoning a Richard II., at another beheading a Charles I., and still at another driving into exile and abdication a James II.! Time would fail us to mention the individual instances of heroism—the names, of even one tithe of those, whose glorious deeds have illustrated the manhood of her people on the pages of her history. Her Russels and her Sidneys, who poured out their hearts’ blood, a rich libation in liberty’s cause. We shall call to mind but one or two. All are familiar with John Hampden, whose dauntless spirit determined him to incur the heavy expense and certain danger of a great controversy with the Crown, rather than pay a few shillings of an illegal tax; but the high and inflexible spirit of the wife of Coke, is net so generally known. Her husband was one of the Justices that presided in Hampden’s case—a case which in its consequences involved the liberties of the entire people of England. She withheld the judgment of that time-serving Judge, her husband, in favor of the King, “by imploring him not to sacrifice his conscience from fear of any danger or prejudice to his family; declaring herself content to suffer any misery, rather than be the occasion for him to violate his integrity.” But perhaps no example of English manhood is as grateful to a lawyer as that of Sir Edward Coke, whose labors have “shed the gladsome light of jurisprudence” on so many legal minds. Coke, with true loyalty, falls upon his knees and acknowledges to an incensed King the error, as’ to the form of a letter; but he rises upon his feet and defends the substance of that letter, which had declined to delay right and justice at the command of his sovereign; and all that insulted Majesty could extort from him, with suspension from office, and dismissal in disgrace staring him in the face, as to what he would do, in a certain proposed case, was that sublime answer: “When the case happens, I shall do that which shall be fit for a Judge to do.”

But the devotion of the English people to their laws, and the manhood which they have displayed in their maintenance, have been, in great measure, due to the excellence of those laws; and perhaps no one principle of the British Constitution has been dearer to the people, and contributed more to the preservation of all the others, than that of trial by jury, which has deservedly been denominated, the palladium of their civil rights. Sir James Mcintosh, in that great forensic effort in defence of M. Pettier, which will ever be admired by the legal profession as a master-piece, gives an instructive instance illustrative of its inestimable value. During the protectorate, Cromwell, who had waded through slaughter to a throne, twice sent to the Court of King’s-bench, then called the upper bench, “a satirist on his tyranny, to be convicted and punished as a libeller. But in that Court, which sat almost in sight of the scaffold streaming with the blood of his sovereign, within hearing of the clash of his bayonets which drove out a Parliament with contumely two successive juries rescued the intrepid satirist from his fangs; and sent out with defeat and disgrace, the usurper’s Attorney-General, from what he had the insolence to call his Court.”

The language and literature of England have gone hand in hand with her laws, to the mutual advantage of each; and it would be difficult to over-estimate for good, the influence of her free press for the last two hundred years. Indeed, tyranny cannot long exist in any country that is blessed with facilities for rapid communication, and which can boast of an unshackled press.

The restriction of suffrage to free agents, has doubtless preserved England from much faction and corruption, and contributed, in no small degree, to the preservation of her Constitution; and the greatest danger which has threatened her during the present century, and which still threatens her, arises from the constant extension of suffrage, to those who are unworthy of it.

I should be unjust to our profession, and recreant to truth, if I failed to acknowledge the invaluable services to law and liberty, that have been rendered, by the learning and integrity of the English Bar. They have stood as sentinels on the watchtowers to warn of danger, whenever the Constitution has been assailed, and foremost in every breach of that citadel, “to repair it or perish in it.” In the language of Erskine, “they have been ready at all times, and upon every possible occasion, whatever might be the consequences to themselves, to stand forward in defence of the meanest man in England, when brought for judgment before the laws of the country.”

Personal and Civil Liberty by John A. Marshall

Law-of-God-William-BlackstonePERSONAL or civil liberty is that boon which man values most among the inestimable gifts of God, his Creator. In the proper enjoyment of it, he stands forth in the image of his Maker, self-reliant and strong. Take from him this inherent natural right — through the forms of government or law — by subjugation or force — by tyranny or prerogative and he is a mere machine, worked by the hand of power.

It is equally true that the prosperity and superiority of the State or Nation having the elements of personal or civil liberty or freedom incorporated in the formation of the society which constitutes it, is in proportion to the extent of the civil privileges, immunities, and franchises. When a State properly enjoys liberty, its progress is the more rapid and stable. When the liberties of the people are abused and degraded, the State retrogrades.

The proper uses of liberty, in a free government where emulation receives encouragement and support, stimulate the citizen, and produce culture, refinement, art, science, invention, learning, eloquence, oratory, statesmanship, and religion, in the highest degree. No other form of government advances the virtues and interests of the people to such superiority and pre-eminence. It invites competition — it is the lever of progress — it is the friend of ambition. Hence, when the whole people — like the individual man — are inspired with a pure, patriotic, and instinctive love of liberty, the State becomes great, illustrious, and mighty.

The Constitution is the chart by which every
Administration ought to be guided; but I 
regret to say — both for the reputation and
stability of our Government — it has, of late,
been a "dead letter".
"He that takes,
 Deep in his soft credulity the stamp
 Designed by loud declaimers on the part
 Of liberty, themselves the slaves of lust,
 Incurs derision for his easy faith
 And lack of knowledge, and with cause enough:
 For when was public virtue to be found
 Where private was naught? Can he love the whole
 Who loves no part? He be a nation's friend
 Who is in truth the friend of no man there,
 Can he be strenuous in his country's cause
 Who slights the charities, for whose dear sake
 That country, if at all, must be beloved?"
It is to be hoped that the men in power, who 
have abused the confidence of the people, 
will soon be displaced. 
Retributive justice will follow him who robs 
the citizen of his liberty, even unto the 
very precincts of the cold and silent grave; 
conscience will smite him on earth, and he 
will exclaim:
"The thorns that I have reaped, are of the 
tree I planted. They have torn me, and I 
bleed!"

The citizen of a free State has no superior, in point of liberty or in point of law. The humblest citizen is entitled lo the same rights and privileges, and the same protection, to which the highest magistrate is entitled. The law in a free government is no respecter of persons, nor does it make any distinction, in so far as liberty is concerned.

Christian Patriot1

In a free government, the Constitution throws around the citizen certain safeguards or protections to his liberty. It gives him the right to trial by jury. It secures him against unreasonable searches and seizures. It protects him against arrest, except on oath made by a responsible person. If maliciously arrested or falsely imprisoned, he has his redress or action against the informant or magistrate for trespass or false imprisonment. “Every restraint upon a man’s liberty” says Kent, “is, in the eye of the law, an imprisonment, wherever may be the place, or whatever may be the manner in which the restraint is effected.” Even words may constitute an imprisonment, if they impose a restraint upon a person, and he submits.

He, then, who, possessing the power, robs the citizen of his liberty, even for an hour—yea, for a moment—without the sanction of law, or deprives him of the right to all the immunities of the law, commits a crime against the interests of the State, which time cannot expiate. By his example, the people are made reckless of their liberties and their allegiance to the State.

Blackstone says: “Of so great importance to the public is the preservation of personal liberty, that, if once it wore left in the power of any, the highest magistrate, to imprison arbitrarily whoever he or his officers thought proper, there would soon be an end of all other rights and immunities. To bereave a man of his life, or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism as must at once convey the alarm of tyranny throughout the whole kingdom; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary power.”

The highest aim of the magistrate in a free government should be to protect and defend, and not destroy, the liberty of the citizen. Even when the State is in danger, it is the province of the Legislature, and not of the magistrate, to protect it against external or internal foes.

In a free or elective system of government, as in the United States, where a written Constitution has been adopted, the different branches of government are so well marked out and defined, and the duties and offices of each are so independent and distinct, that under no possible circumstances can usurpations in any, or the encroachments of one upon the other, be excused. Any usurpation whatever, in either branch, leads to anarchy, demoralization, and finally disruption. The blow may not be aimed at, but it strikes into the very heart of liberty.

Hence the absolute necessity of keeping the liberties of the people pure and immaculate, and free from infringement, by the makers, the administrators, and the expounders of the laws.

In order to protect and increase the power and prolong the independence of the State, the liberties of the people must be fostered, guarded, and secured. “It ” (liberty), says Burke, “is not only a private blessing of the first order, but the vital spring or energy of the State itself, which has just so much life and vigor as there is liberty in it.”

BlackstonePrivateProperyTo protect liberty, the streams of legislation, administration, and justice must be kept clear, from the fountain-head even unto the mouth. Usurpation’s and encroachments upon the rights and liberties of the citizen are as deleterious to the tranquility and welfare of the State as the unbridled, unrestrained, and licentious abuse of them by the citizen.

These prefatory remarks are made merely to remind the general reader of his constitutional rights. Of late, the civic rights of the citizen have been abridged. It remains to be seen whether he will maintain them. The permanence and stability of the government rest entirely with the citizen. It is for him to say how long free government will exist in our country.

Although free government may be traced back to a period of about three thousand years, it is not my intention to allude to the experiments in establishing it beyond the adoption of Magna Charta, in which may be found the vital principles on which it is based. The political rights which we enjoy under our Constitution may be said to be derived directly from that document.

Yet, it is proper to say here, that the principles of liberty enunciated and the privileges granted by the Magna Charta, many of which had been digested in a code of laws by Alfred, were not confined exclusively to the Anglo-Saxons; for almost at the same era, upon the election of King Christopher II. of Denmark, he was obliged to sign a charter grant, ing nearly the same privileges and immunities as were contained in the Magna Charta, among which were that no man should be imprisoned, or deprived of life, liberty, or property, without public trial and conviction according to law; and that no law should be made or altered without the consent of the Parliament, composed of the best men of the kingdom, to be held annually at Wyborg.

And it may be said, that in Northern Europe, as well as in England, at the time of the granting of the Great Charter, the German tribes generally, and the Danes, were inspired by the same spirit of liberty which was kindled in the hearts of the Anglo-Saxons, their descendants.

Blackstones innocentsFrom the time of the granting of the municipal privileges and personal rights, as contained in Magna Charta, signed by King John on the 15th of June, 1215, but which was not really established until “after the contests of near a whole century,” for during that time, “it is computed,” says Hume, “that about thirty confirmations of the charter were at different times required of several kings, and granted by them in full Parliament,” the people of England have been jealous of their personal liberties and watchful of their civic rights.’

Since that period, the genius of the English people has been strongly and invariably in favor of liberty, while royal prerogative, until the accession of William and Mary, inclined as violently towards arbitrary power.

The Magna Charta laid the foundation for a Constitution, which has engrafted in it all the attributes and security of personal liberty, and stands a monument of enlightened statesmanship, worthy the pride and admiration of the English people; while the Great Charter itself denotes an epoch between despotism and liberty—semi-barbarism and civilization—rudeness and refinement.

The struggles to maintain the chartered rights of the people against the encroachments and usurpations of kingly prerogative, have been many, great, and even revolutionary. It has only been by an unconquerable will, and severe contests, that they have again and again been reasserted and re-established, enlarged and secured.

The Magna Charta secured personal freedom, 
the Declaration of Independence proclaimed it, 
and the Constitution guaranteed it!
When you allow the FIRST FREEDOM protected by 
the FIRST AMENDMENT to the Constitution to be 
consistently attacked and taken away by man, 
the Liberty; that of RELIGIOUS EXPRESSION, 
then all the other Liberties and Freedoms 
given to man by God, all other freedoms and 
liberties enumerated in the Magna Charta, the 
Declaration of Independence and the Constitution 
will SOON to follow!
How far, then, will politicians abuse our 
patience? How long, too, will their frantic 
wickedness of baffle our efforts? To what extent 
will their unbridled audacity insolently display 
itself? 
Liberty, in the better days of our Republic, 
was the birthright of the American citizen. 
What guarantee has he that he will be protected 
in this fireside right in the future, if we may 
judge the future by the past. When the 
Constitution is despoiled of the altar 
of Liberty, in what Temple can Freedom Worship?
With us Liberty has no protective guarantees. 
Mr. Seward may again ring his "little bell," 
and secretly hurry the citizen from the family 
circle to the loathsome prison by the strong 
arm of arbitrary power, and what redress has he? 
What becomes of the old English maxim, 
"Every man's house is his castle?"
Our bureaucracy is filled by people with skulls 
that cannot teach, and will not learn.

Encroachments upon the rights and liberties of the people by Charles I., who caused the arbitrary imprisonment of his subjects, gave birth to the enactment of the Petition of Right, and also brought the head of that unhappy monarch to the block.

To enforce the provisions contained in the Magna Charta and Petition of Right, for securing the subject in his personal rights and personal liberty, against arbitrary imprisonments by command of the King or the Privy Council, the Habeas Corpus Act was passed, in the 31st Charles II. It may be called the bulwark of English liberty.

For nearly five centuries, the contests between sovereign and people, the one for royal prerogative, the other for the rights of personal liberty, were many and violent.’

If the King would threaten with the Star Chamber, the people would point to the Magna Charta. If the King would commit by the High Commission Court, the people would unfold the Petition of Right. If the King would imprison by the Privy Council, the people would release through the Habeas Corpus.

In our own country, there was a time when the proudest appellation a man could bear was that of American citizen. “I am an American citizen,” implied liberty and safety — protection and justice. Then, the national shield was, indeed, a shield with arms — a shield which defended the citizen against every act of tyranny and usurpation — a shield which guarded him on land and sea„at home and abroad. Then, personal liberty was a citizen’s birthright. Then, free speech was unshackled. Then, Mr. ‘Webster could exclaim: “It” (free speech) ” if a homebred right — a fireside privilege. It has ever been enjoyed in every house, cottage, and cabin in the nation. It ‘s not to be drowned in controversy It is as undoubted as the right of breathing the air and walking on the earth. It is a right to be maintained in peace and in war. It is a right which cannot be invaded without destroying constitutional liberty. Hence, this right should be guarded and protected by the freemen of this country with a jealous care, unless they are prepared for chains and anarchy.”

What are the protections of the law now?

When the arteries which convey the life-blood from the heart of the constitution to all parts of its body once become paralyzed, the most skilful treatment can never restore it to its original vigor and healthful condition. A partial recovery may be effected, but the disease remains.

Oppressive and illegal acts by one Administration may be adopted as established precedents for similar encroachments by succeeding ones ; and who can gainsay the right? Surely, not the people, when they not only encourage, but are accessories in the wrong. Therefore, without a proper and conscientious regard for the majesty of the law, and the observance of personal rights, there is no security for permanence in free government.

See also: Rights of American Citizens: 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.

House of Representatives: The Power of the Public Purse

This is why the Elitist’s in the United States want to eliminate the middle class

It is easy to see why the Elitist’s & Statist’s in the United States want to eliminate the middle class, history will always tell the tale.

despotism-alexis-de-tocqueville

“But what say the despots? Like the tyrannical son of Philip, when he reprimanded Aristotle for publishing his discoveries, they whisper to their myrmidons [loyal followers], Let us diffuse darkness round the land. Let the people be kept in a brutal state. Let their conduct, when assembled, be riotous and irrational as ignorance and ‘our’ spies can make it, that they may be brought into discredit, and deemed unfit for the management of their own affairs. Let power be rendered dangerous in their hands, that it may continue unmolested in our own. Let them not taste the fruit of the tree of knowledge, lest they become as we are, and learn to know good and evil.” (quote Author Unknown written in late 1700’s)

The tactics of the despots and tyrants are still the same today as we can see by the tactics the left and elitist’s use in America against their opposition in the Tea Party.

The left and democrats have had agents infiltrate the Tea Party rallies as “spies” or saboteurs espousing racist, anti-Semite and other comments or holding signs trying to discredit the Tea Party Patriots.

They call the Tea Party Patriots names such as Nazi’s, Racist’s, Anarchist’s, Arsonist’s, Hobbit’s, WackoBirds, Extortionists, Terrorists and numerous others to paint them as unruly, unfit, unlawful, dangerous, mentally unstable, etc. It’s the same old playbook the elitist’s, tyrant’s and despots have used throughout history.

Despotism Aristotle

The Spirit of Truth, Liberty, and Virtue, public as well as privatef chiefly to be found in the Middle Ranks of the People.

Nemo altero nobilior, nisi cui rectius ingenium et artibus bonis aptius. Qui imagines in atrio exponunt et nomina families suae.— Noti magis quam nobiles sunt.—Dicenda hsec fuerunt ad contundendam insolentiam hominum ex fortuna pendentium. [“No man is nobler born than another, unless he is born with better abilities and a more amiable disposition. They who make such a parade with their family pictures and pedigrees, are, properly speaking, rather to be called noted or notorious than noble persons. I thought it right to say thus much, in order to repel the insolence of men who depend entirely upon chance and accidental circumstances for distinction, and not at all on public services and personal merit.”]

Seneca de Benef.

Being about to quote a striking passage from the writings of Dr. Price, the author digresses to pronounce a panegyric upon him, led, he says, by an honest indignation against the vilest of calumnies [slanders] against the best of men:

On the mention of his name, I must pay a trilling tribute to his memory, which is the more necessary, as his character has been scandalously aspersed by those who are ever busy in discrediting the people and their friends, and who, pretending a love of goodness and religion, blacken with their foulest calumny those who are singularly remarkable for both, for no other reason than that, under the influence of goodness and religion, such persons espouse the cause of freedom, and prefer the happiness of millions to the pomp and pride of a few aspirants at unlimited dominion. Meek, gentle and humane; acute, eloquent, and profoundly skilled in politics and philosophy; take him for all and all, the qualities of his heart, with the abilities of his head, and you may rank Price among the first ornaments of his age. Let his enemies produce from all their boasted despots and despotical Satraps, any one of his contemporaries whom, in the manner of Plutarch, they may place by his side as a parallel. Posterity will do him the justice of which the proud have robbed him, and snatch him from the calumniators, to place him in the temple of personal honor, high among the benefactors to the human race.”

Has not the United States been holding human life cheap for far too long? Abortion comes to mind…see the following.

When Human Life is held cheap, it is a Symptom of a prevailing Spirit of Despotism.

The dignity of human nature, in despotical countries, is treated as a burlesque [a mockery]. A man is less dignified than a pampered horse, and his life infinitely less valued. But in a land of liberty, like ours, every man should learn to venerate himself and his neighbor, as a noble creature, dependent only on God, on reason, on law. Life, under such circumstances, is a pearl of great price. Every human being, under such circumstances, is of equal value in the sight of God. They, therefore, who, in consequence of civil elevation, hold any man’s life cheap and vile, unless he has forfeited his rights by enormous crimes, are guilty of rebellion against God, and ought to be hunted out of society; as the wolf, once the native of England’s forests, was exterminated from the island.

The consequences are traced of holding human life cheap. It is maintained with the philosopher [Seneca] of antiquity, that homo res est sacra, [man is a sacred thing] that every human creature is consecrated to God, and therefore inviolable by his fellow-man without profanation. All the gold of Ophir, all the gems of Golconda, cannot buy a single life, nor pay for its loss. But in despotic countries, and in all countries, opinions that depreciate man as man tend to despotism; the dignity of human nature is treated as a burlesque [a mockery].

Despotism JeffersonPublic and private virtue, the author contends, are found chiefly in the middle ranks.

[Editors Note: It takes little imagination to see how this applies to the United States and its current condition.]

The people of this land are usually divided into nobility, gentry, and commonalty. The nobility and gentry seem to be estimated as officers in an army of the commonalty, or the whole body of the people, as the rank and file.

There might be no original impropriety in. these appellations; but that of commonalty has been often used, by aristocratical upstarts, with insolence. The commonalty comprise the grand mass of the nation; form the great fabric of the political building; while the gentry, after all, are but the carving and gilding, or the capitals of the pillars, that add to the support of the roof, but constitute neither the walls nor the foundation. The commonalty, therefore, being the main fabric, are worthy, in the eye of reason, of the highest esteem, and the first degree of a patriot’s solicitude. There can be no rational end in our government but the happiness of the whole people, king, lords, and commons.

The commonalty are, beyond all comparison, the most numerous order: and as every individual of them is entitled to comfort and security in a wellregulated nation, the whole together must demand the greatest attention of the philosopher, the divine, the philanthropist, of every man of sense, goodness of heart, and liberality. The pomp and parade, the superfluous luxury, the vain distinctions of the few, sink to nothing, compared, in the mind of reasonable and humane men, with the happiness of the million.

It is certainly true, that the greatest instances of virtue and excellence of every kind have originated in the middle order. ” Give me neither poverty nor riches,” was a prayer founded on a knowledge of human nature, and fully justified by experience. The middle station affords the best opportunities for improvement of mind, is the least exposed to temptation, and the most capable of happiness and virtue.

This opinion has long been received and acknowledged. I could cite, from the sermons of our best divines on Agur’s Prayer, many passages in confirmation of it. I dwell upon it now, for no other reason, but because it has lately been the fashion, among those who are alarmed for their privileges by the French revolution, to run down the people, and to cry up that silly spirit of chivalry which established the systems of false honour, claiming rank and respect from society, without rendering it any service, without possessing any just claim to esteem, much less to public honour, exclusive privileges, and titular distinction. The terms sans culottes, canaille, bourgeoise, scum of the earth, venal wretches, and the never to be forgotten swinish multitude, have been reserved for the people, especially those among them who have had sense and spirit enough personally to oppose the progress of despotic principles and practices. Every thing that malice, urged by the fear of losing the ribands, the titles, and the solid pence, which a corrupt and corrupting minister can bestow, has been thrown out, in newspapers hired by the people’s money, for the purpose of vilifying the people.

It is time, therefore, that the people should vindicate their honour. What are these insolent courtiers, what these placemen and pensioners, who live on the public bounty, that they should thus insult those whose bread they eat ? For the most part, they are persons who, if they were stripped of the false splendour of great mansions, numerous retinues, painted carriages, would appear among the meanest and most despicable members of society. They indeed are to be pitied and borne with, while they abstain from insulting the people ; but when their silly pride presumes to trample on the mass of the community, they become deserving of contempt as well as commiseration.

These are the persons whom a patriotic lord describes ” as giving themselves up to the pursuit of honours and dignities, as loving the splendour of a court, and attaching themselves to the cause of monarchy, (not from any conviction that monarchy is the most favourable to human happiness, not even, from personal attachment to the monarch,) but because they see in the increased power of the monarch the source of additional weight and splendour to those (that is themselves) who surround the throne, and an increase of value to the favours which the sovereign can confer ; such as stars, garters, ribands, and titles.”

But is a passion, childish from its vanity, and diabolical in its unfeeling greediness, to be borne with any longer, when, not content with engrossing the profits of office and the pageantry of state, it dares to speak of the middle and lower classes, as beings scarcely deserving notice, as mere nuisances when not employed in the servile office of administering to aristocratic pride.

Virtue is nobility. Personal merit, useful, generous, benevolent exertion, the only honourable distinction. The trappings which every tailor can make to clothe a poor puny mortal, add no real dignity. In ages of ignorance, they might strike with awe. Those ages are no more. Nor will they ever return, notwithstanding the efforts of petty despots, (fearing the loss of those distinctions which they know they never earned,) to keep the people in the grossest ignorance.

God Almighty, who gives his sun to shine with as much warmth and radiance on the cottage as on the palace, has dispensed the glorious privilege of genius and virtue to the poor and middle classes, with a bounty perhaps seldom experienced in any of the proud pretenders to hereditary or official grandeur. Let us call to mind a few among the worthies who have adorned the ages that have elapsed: Socrates; was he noble in the sense of a king at arms? Would he have condescended to be bedizened with ribands, and stars, and garters? Cicero; was he not a novus homo? a man unconnected with patricians, and deriving his glory from the purest fountain of honour, his own genius and virtue? Demosthenes would have scorned to owe his estimation to a pedigree.

Who were the great reformers, to whom we of England and all Europe are indebted for emancipation from the chains of superstition? Erasmus and Luther; Erasmus, as the monks of his day objected to him, laid the egg, and Luther hatched it . But was it Archbishop Erasmus? Lord Luther, Marquis Luther, Sir Martin Luther? Did they, either of them, seek the favour of courts? Were they not among the swinish multitude?

Thomas Paine contributed much, by his “Common Sense,” to the happy revolution in America. I need not observe, that he had nothing of the lustre of courts or nobility to recommend him. The virulent malice of courtiers and venal scribblers has blackened him as they once blackened Luther, when they asserted of him, that he was actually a devil incarnate, disguised in the shape of a monk with a cowl. I do not advert to any of his subsequent political publications. I only say, if they are so contemptible as they are said by courtiers and aristocrats to be, why not undertake the easy task of refuting him? Bloody wars and prosecutions are no refutation.

“‘Who is this Luther? said Margaret, governess of the Netherlands. The courtiers around her replied, ‘ He is an Illiterate monk.’ ‘ Is he so?’ said she. “ I am glad to hear it. Then do you, gentlemen, who are not illiterate, who are both learned and numerous, do you, I charge you, write against this illiterate monk. That is all you have to do. The business is easy; for the world will surely pay more regard to a great many scholars, and great men, as you are, than to one poor ILLITERATE MONK.’  [Martin Luther]

“Many did write against him, and poured forth the virulence of a malice unchecked by truth, and encouraged by crowned heads. But Luther prevailed; and we Englishmen have reason to celebrate the victory of truth and virtue over corrupt influence and cruel persecution.

“The greatest scholars, poets, orators, philosophers, warriors, statesmen, inventors and improvers of the arts, arose from the lowest of the people. If we had waited till courtiers had invented the art of printing, clock-making, navigation, and a thousand others, we should probably have continued in darkness to this hour. They had something else to do, than to add to the comforts and conveniences of ordinary life. They had to worship an idol, with the incense of flattery, who was often much more stupid than themselves, and who sometimes had no more care or knowledge of the people under him, or their wants, than he had of arts or literature.”

Now see what he says in the following about the character and virtues of the middle class.

“The education of the middle classes is infinitely better than the education of those who are called great people. Their time is less consumed by that vanity and dissipation which enfeebles the mind, while it precludes opportunity for reading and reflection. They usually have a regard to character, which contributes much to the preservation of virtue. Their honor and integrity are valued by them, as pearls of great price. These are their stars, and these their coronets. They are for the most part attached to their religion. They are temperate, frugal and industrious. In one particular, and that one adds a value above all that Courts can give, they greatly excel the GREAT, and that particular is SINCERITY. They are in earnest in their words and deeds. They have little occasion for simulation and dissimulation. Courtiers [Elitists, Politicians] are too often varnished [glossy], factitious [artificial] persons, whom GOD and nature never made; while the people preserve the image uneffaced [unchanged] which the Supreme Being impressed when he created MAN.”  From a pamphlet written circa 1800-1820 by Dr. (I assume Rev.) Price

I ask you this;

If our government officials think themselves above the legislation & regulations they impose on US, is this not despotism & tyranny? If our leaders do not hold sacred the laws they pass, how can they then expect anything other than the citizenry rising up against them?

Have the left and statist’s not been attacking the Christian religion, the Holy Bible, and the followers of Jesus for decades in the U.S. now? Why do you think they attack christians? It is because true Christians and Christianity promote and advance liberty, knowledge, wisdom, and happiness. They promote dependence on God and his son Jesus, rather than dependance on government or man.

The Obama administration has even gone so far as to say Fundamental Christians in America are the greatest threat to the security of the United States. To a tyrant and despot who wishes to encroach on the liberties and happiness they espouse, this would seem to be true.

In closing I will add this:
In case any of you don’t know; when the democrats and elitists say they want to help the middle class, just as always, they mean the exact opposite. Just like the Affordable Care Act has been proven to be unaffordable, unaffordable to our pocket-books, our freedoms, and our consciences. What they really want to do is help the middle class become part of the poverty class. Simple truth and fact as demonstrated by the policies they put forth. It’s really not rocket science they truly are transparent to the eye that can see.

A few words of wisdom from the Apostle of Freedom before I go:

“It is important, likewise, that the habits of thinking in a free country should inspire caution in those entrusted with its administration, to confine themselves within their respective constitutional spheres, avoiding in the exercise of the powers of one department to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism. A just estimate of that love of power, and proneness to abuse it, which predominates in the human heart, is sufficient to satisfy us of the truth of this position. The necessity of reciprocal checks in the exercise of political power, by dividing and distributing it into different depositories, and constituting each the guardian of the public weal against invasions by the others, has been evinced by experiments ancient and modern; some of them in our country and under our own eyes. To preserve them must be as necessary as to institute them. If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates.” ~President Washington in his farewell address 1796

When Vain & Aspiring Men Possess the Highest Seats in Government by Samuel Adams

Samuel-AdamsSamuel Adams Letter to James Warren Philadelphia Oct 24 1780

MY DEAR SIR

I have not yet laid aside your Letter of the 17th of Septr which is the last I have been favord with from you. It ill becomes you, my Friend, to think of retiring into private Life, who can lay your hand on your heart, and say that in your publick Conduct your have in no Instance deviated from virtuous Principles. If ever the Time should come, when vain & aspiring Men shall possess the highest Seats in Government, our Country will stand in Need of its experiencd Patriots to prevent its Ruin. There may be more Danger of this, than some, even of our well disposd Citizens may imagine. If the People should grant their Suffrages to Men, only because they conceive them to have been Friends to the Country, without Regard to the necessary Qualifications for the Places they are to fill, the Administration of Government will become a mere Farce, and our pub-lick Affairs will never be put on the Footing of solid Security. We should inquire into the Tempers of Men, in order to form a Judgment in what Manner the publick Trusts to be reposed in them will be executed. You remember the Character of Pisistratus. He was a Citizen of Athens, supposd to have many excellent Qualities, but he had an insatiable Lust of Pre-eminence. Solon could discover his Vanity, but the People were blinded by a false Glare of Virtues and he was their Idol. Under Pretence of his having escaped imminent Danger from a violent Faction, and the further Insecurity of his Person he artfully obtaind a Guard of Soldiers, by which Means he possessd himself of the Citadel & usurpd the Government. But though he made himself Sovereign, & thus far overthrew the popular Election, the Historian tells us, “that he made no Change in the Magistracy or the Laws.—He was content that others should hold their Places according to the establishd Rules of the Constitution, so that he might continue Archon, independent of the Suffrages of the People. This he effected; for though several Attempts were made, to deprive him of the Sovereignty which he had so violently obtaind, he held it till his Death & left it to his Children.” Such was the Ambition of this Man, who indeed assumd the Government, and such were the Effects of it. Power is intoxicating; and Men legally vested with it, too often discover a Disposition to make an ill Use of it & an Unwillingness to part with it. HOW different was Pisistratus from that Roman Hero and Patriot Lucius Quinctius Cincinatus who, tho vested with the Authority of Dictator, was so moderate in his Desires of a Continuance of Power, that, having in six Weeks fulfilld the Purposes of his Appointment, he resignd the dangerous office, which he might have held till the Expiration of six Months.—When we formerly had weak and wicked Governors & Magistrates, it was our Misfortune; but for the future, while we enjoy and exercise the inestimable Right of chusing them ourselves, it will be our Disgrace. I hope our Countrymen will always keep a watchful Eye over the publick Conduct of those whom they exalt to Power, making at the same time every just Allowance for the Imperfections of human Nature; and I pray God we may never see Men filling the sacred Seats of Government, who are either wanting in adequate Abilities, or influencd by any Views Motives or Feelings seperate from the publick Welfare. [public Welfare = Public Good, i.e. Life, Liberty, Pursuit of Happiness]

Adieu.

Warren’s September 17 letter to Adams is in Warren-Adams Letters, 2:138-39

Bi-Partisanship It’s becoming more and more obvious that it is the government (both parties) against We The People.

Excerpt from letter by Samuel Adams to Eldridge Gerry Nov 27, 1780
“More in my Opinion, is necessary to be done, than conquering our British Enemies in order to establish the Liberties of our Country on a solid Basis. Human Nature, I am affraid, is too much debas’d to relish those Republican Principles, in which the new Government of the Common Wealth of Massachusetts appears to be founded. And may it not be added, that the former Government, I mean the last Charter, being calculated rather to make servile Men than free Citizens, the Minds of many of our Countrymen have been inurd to a cringing Obsequiousness [Full of or exhibiting servile compliance; fawning], too deeply wrought into Habit to be easily eradicated? Mankind is prone enough to political Idolatry. Such a temper is widely different from that reverence which every virtuous Citizen will show to the upright Magistrate. If my Fears on this Head are ill grounded, I hope I shall be excusd. They proceed from a cordial Affection for that Country to the Service of which I have devoted the greatest Part of my Life—May Heaven inspire the present Rulers with Wisdom & sound Understanding. In all Probability they will stamp the Character of the People. It is natural for sensible Observers to form an Estimate of the People from the Opinion they have of those whom they set up for their Legislators & Magistrates. And besides, if we look into the History of Governors, we shall find that their Principles & Manners have always had a mighty Influence on the People. Should Levity & Foppery(fn1) ever be the ruling Taste of the Great, the Body of the People would be in Danger of catching the Distemper, and the ridiculous Maxims of the one would become fashionable among the other. I pray God we may never be addicted to Vanity & the Folly of Parade! Pomp & Show serve very well to promote the Purposes of European & Asiatick grandeur, in Countries where the Mystery of Iniquity is carried to the highest Pitch, & Millions are tame enough to believe that they are born for no other Purpose than to be subservient to the capricious Will of a single Great Man or a few! It requires Council & sound Judgment to render our Country secure in a flourishing Condition.—If Men of Wisdom & Knowledge, of Moderation & Temperance, of Patience Fortitude & Perseverance, of Sobriety & true Republican Simplicity of Manners, of Zeal for the Honor of the Supreme Being & the Welfare of the Common Wealth—If Men possessd of these & other excellent Qualities are chosen to fill the Seats of Government we may expect that our Affairs will rest on a solid & permanent Foundation.”

(fn1)
Levity: means humor or frivolity, esp. the treatment of a serious matter with humor or in a manner lacking due respect.
Foppery: is a pejorative term describing a foolish man overly concerned with his appearance and clothes in 17th century England. Some of the very many similar alternative terms are: “coxcomb”, fribble, “popinjay” (meaning “parrot”), fashion-monger, and “ninny”. “Macaroni” was another term, of the 18th century, more specifically concerned with fashion. A modern-day fop may also be a reference to a foolish person who is overly concerned about his clothing and incapable of engaging in intellectual conversations, activities or thoughts.

See also:
Patrick Henry may well be proved a Prophet as well as a Statesman
The Importance of Free Speech and The Free Press in America
RIGHTS OF AMERICAN CITIZENS: Powers delegated to the State GovernmentsThe Doctrine of Fascism, Fascism Defined by Benito Mussolini

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.

Footnotes:

(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

PART II; OF SOME PARTICULAR RIGHTS

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: The Rights of Juries
RIGHTS OF AMERICAN CITIZENS: The Rights of Witnesses
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

RIGHTS OF AMERICAN CITIZENS: The Rights of Witnesses

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

PART II; OF SOME PARTICULAR RIGHTS

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 Rights of Juries
RIGHTS OF AMERICAN CITIZENS: The Rights of Witnesses
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

PART II; OF SOME PARTICULAR RIGHTS

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 Rights of Juries
RIGHTS OF AMERICAN CITIZENS: The Rights of Witnesses
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

PART II; OF SOME PARTICULAR RIGHTS

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 Rights of Juries
RIGHTS OF AMERICAN CITIZENS: The Rights of Witnesses
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

PART II; OF SOME PARTICULAR RIGHTS

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 Rights of Juries
RIGHTS OF AMERICAN CITIZENS: The Rights of Witnesses
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