VII. mental tees. The great fundamental rights guaranteed by the Lecture constitutions are life, liberty, contracts, and property. The two former are everywhere respected Fundaand protected by the legislatures and the courts. I guaran recall only one notable exception to this statement, and that is found in the decision of the Supreme Court of Pennsylvania, affirmed by the Supreme Court of the United States, that the legislature could constitutionally prevent a man from pursuing what was, in fact, a lawful business, namely, the manufacture and sale of oleomargarine. I have commented on this elsewhere.' But we cannot close There are and have been constitutions, written and unwritten, organic or fundamental laws. But in all of them, so far as I know, the fundamental laws thus established have no sanction beyond the oath of those intrusted with the administration of them, the force of public opinion, and the responsibility of the representative to his constituent. With us the fundamental laws are, in the strictest sense of the words, leges legum. The vital principle of our system is that the act of the legislative body, contrary to the power confided to it by the constitution, is a nullity and absolutely void. The courts must so pronounce, and the executive must enforce their judgments with the whole force of the State. The judiciary is thus necessarily an important branch of the government. Our Bills of Rights are, therefore, not mere enunciations of abstract principles, but solemn enactments by the people themselves, guarded by a sufficient sanction." Sharswood, 1 Dillon, "Municipal Corporations," 4th ed., vol. i., p. 211, note. I there said: "We cannot but express our regret that the constitution of any of the States, or that of the United States, admits of a construction that it is competent for a State legislature to suppress (instead of regulating) under fine and imprisonment the business of manufacturing and selling a harmless, and even wholesome, article, if the legislature chooses to affirm, contrary to the fact, that the public health or public policy requires such suppression. The record of the conviction of Powell for selling without any deception a healthful and nutritious article of food makes one's blood tingle." I appreciate, of course, the difficulties in the way of the courts when asked to disregard the false recital in the legislative act, and I recognize the further fact VII. Attacks on private property. Lecture our eyes to the fact that to some extent the inviolability of contracts, and especially of private property, is menaced both by open and covert attacks. Property is attacked openly by the advocates of the various heresies that go under the general name of socialism or communism, who seek to array the body of the community against individual right to exclusive property, and in favor of the right of the community in some form to deprive the owner of it or of its full and equal possession and enjoyment. Property, or the full measure of its rightful enjoyment, is also covertly invaded, not by the socialist, but at the instance of a supposed popular demand; in which case the attack is directed against particular owners or particular forms of ownership, and generally takes the insidious, more specious, and dangerous shape of an attempt to deprive the owners usually corporate owners of their property by unjust or discriminating legislation in the exercise of the power of taxation, or of eminent domain, or of that elastic power known as the police power, such legislation resulting, and intended to result, in "clipping" the property, or "regulating" the owner out of its full and equal enjoyment and use. Among the people of our race the era of the despotism of the monarch or of an oligarchy has passed away. If we are not struck with judicial blindness we cannot fail to see that what is now to be feared and that the courts cannot supply a panacea for legislative misdoings; but still I think that invasions of fundamental rights, such as the right to pursue what is in fact a lawful business, ought not to be dependent upon the epithets with which a legislative majority may see fit to characterize it. guarded against is the despotism of the many, Lecture VII. dom of the The statesmen who founded and shaped our The wis democratic, or more accurately speaking repub- founders lican, institutions, were fully alive to these great of our intruths. They were neither visionaries nor socialists. It is among the eternal lessons of history, 1 Oxford Lectures and Other Discourses, London, 1890, lecture iv., p. 100. So, before the kingly office was separated from the judicial office, David prayed: "Give the King thy judgments, O God, that they may come down like rain into a fleece of wool, even as the drops that water the earth;" that is to say, gently like the fertilizing rain, and not violently like the destructive deluge. Psalm lxxii., version of the English Prayer-Book. 2 They were really English Whigs of the Chatham and Burke school. The contest with England did not originate in any sentimental or speculative notions of the rights of man, or in any hostility to monarchy or the form of the English government. The Colonies made but a single issue, namely, that they ought not to be taxed by a Parliament in which they were not represented. This contest began and was settled years before the French Revolution, and had nothing in common with it. The colonists claimed nothing but English liberties, and wanted nothing beyond Magna Charta. It was a contest for English liberties. So they regarded it, and so it was regarded by their friends and supporters in England. Thus, in Burke's address to the King occurs the passage on the subject, which Lord Grenville said "was the finest that Burke ever wrote, perhaps the finest in the English language, -- beginning, 'What, Gracious Sovereign, is the empire of America to us, or the empire of the world, if we lose our own liberties?" " "Life of Sir James Mackintosh " (American Ed., Little, Brown, & Co., 1853, vol. ii., stitutions. VII. Restraints Lecture which they well knew, that the mass of the people were subject to the influence of supposed temporary interests and of "violent and casual forces" which might be in conflict with their own vital and permanent well-being. on popular power necessary. แ Burke, perhaps the deepest and wisest political thinker of any age, speaking on this subject, says: Society requires not only that the passions of "individuals should be subjected, but that even in "the mass and body, as well as in the individuals, "the inclinations of men should be thwarted, their "will controlled, and their passions brought into subjection. This can only be done by a power "out of themselves, and not in the exercise of its "function subject to that will and to those passions p. 475). The colonists had the English love of precedents, and rebelled according to English forms. As in the English Revolution James II. was declared to have "abdicated," so curiously enough in the indictment of George III., which the Declaration of Independence really is, they asserted that he "has abdicated his government here by declaring us out of his protection and waging war against us.” Singular abdication that of a king who was at the time fighting his accusers with his combined armies and navies! There was, indeed, no choice, but there was no general inclination to found the new governments upon any other basis than the sovereignty of the people. The perils as well as the advantages of this form of government, unless the direct exercise of popular power should be restrained, were anxiously felt. This was the great problem to be solved. And in this consists the whole rationale of written constitutions and of the checks and limitations of which the constitutions essentially consist. They did not believe men to be angels, but very human. Accordingly the constitutions which they builded are, as Professor Bryce forcibly puts it, "the work of men who believed in original sin, and were resolved to leave open to transgressors no door which they could possibly shut," with the result that the constitutions they established, "if regarded simply in their legal provisions, were the least democratic of democracies." Bryce, "The American Commonwealth," vol. i., pp. 299, 300. 1 VII. "which it is its office to bridle and subdue. In this Lecture "sense the restraints on men, as well as their liberties, "are to be reckoned among their rights." Realizing these truths and the necessity of safeguarding these vital and permanent interests, the founders of our political and legal institutions originated and the device is, as I have said, the crowning proof of their wisdom the American polity of constitutional restraints upon all of the departments of the governments which the people established. of the stitutions erty, and All of the original States in their first constitutions Provisions and charters provided for the security of private early conproperty, as well as of life and liberty. This they securing did either by adopting, in terms, the famous thirty- life, lib ninth article of Magna Charta which secures the property. people from arbitrary imprisonment and arbitrary spoliation, or by claiming for themselves, compendiously, all of the liberties and rights set forth in the Great Charter.2 I make this statement as to the action of the original States after a careful examination of their charters and constitutions. On the admission into the Union of subsequent States, the constitution of each contained similar provisions. When the Federal Constitution was formed there of the was inserted in it the provision, also original and 1 Burke's Works, American Ed. (Little, Brown, & Co.), "Reflections on the Revolution in France," vol. iii., p. 310. 2 All of the constitutions of the forty-four States contain like provisions. Mr. Bryce, in his chapter on the "Development of State Constitutions" ("American Commonwealth," vol. i., chap. xxxviii.), did not fail to perceive that "they show a wholesome anxiety to protect and safeguard private property in every way. . . . The only exceptions to this rule are to be found in the case of anything approaching a monopoly, and in the case of wealthy corporations." Federal constitution. |