BOOK FIRST.

OF THE POLITICAL RIGHTS OF A CITIZEN

OF THE UNITED STATES.

CHAPTER I.

WHAT A CONSTITUTION IS.

The political rights of a citizen of the United States are defined, established, and protected by the Constitution of the United States, and the constitutions of the several States. Our first endeavor will be to ascertain what this word "constitution," when used in a political

sense, means.

A constitution is that supreme law, which the nation itself makes, as the condition and the limitation of all the powers it will thereafter impart to its political servants. It is the guide which it gives to them all. It is the expression of the deliberate determination of the whole people, that the rights which it believes to lie at the foundation of all right, shall ever be preserved; that certain principles, which are to be as the life and essence of all law, shall ever be maintained; and it divides and defines, and yet connects together, all the organic powers and functions of the State. It governs all legislative bodies in the exercise of their functions, for it is the law of the law of the nation. And when the constitution is thus formed, it is thereafter the supreme law of every citizen of the State, be he high or low, be it his office to make, to execute, or to judge of law, or only to assist in laying these duties upon others. To every man, and to every man alike, it is a supreme law.

The imperfect imitations of a constitution on the continent of Europe, and on this continent south of the Union, were never the expression or the creation of the deliberate reason and will of the people; they never were what constitutions should be, and nearly all of them have been torn into tatters.

We often read of the British Constitution. But Great Britain has no constitution. Let us suppose that, at the next session of the British Parliament, a rigorous censorship of the press is established, the Queen authorized to lay what taxes she will, on whom she will, and collect them as she will, the Habeas Corpus Act repealed, and all the ministers supplied with blank warrants under the privy seal, as it once was in France, which they may fill with any name, and by these means imprison any persons at their pleasure. And let us suppose that these laws pass through Parliament with precisely the same forms as those necessary for a statute to regulate the days of grace on bills of exchange, or to provide any other common mercantile or municipal measure. It is certain that no man in England would have a legal right to resist any one of these laws; and no court or magistrate in England would have a legal right to obstruct, or defeat, or annul them, or do any other thing than carry them at once into full force and effect. Of course, if the popular sentiment were not greatly changed, there would be opposition and effectual resistance somewhere. But it would be the opposition of rebellion or revolution, and not of legal right. But iet any such law be passed by Congress and the President of the United States, or by the legislature and governor of any State, and it is only nothing. It is dead at its birth. The judicial body of the nation or the State is ready to declare it to be nothing. And the reason for all this is, that the law opposes the constitution, and, by the force of that fact, is nothing. If, in England, the word "constitution" may mean the whole complex of all their political and legal institutions, here it means something distinct from them all, something sovereign over them all, imparting life to all of them that live, and denying life and power to whatever opposes it.

The government of these United States is this day the strongest government in the world, for it is the organ of a nation endowed with self-government, and is invested with the nation's might, to be used for the nation's good, in whatever way may prove to be the best. It is the government of law, and its strength is in the Constitution. We are a nation that includes as wide a diversity of opinion, of sentiment, of character, and of interest, as of soil and climate. But over us all the Constitution bends like the universal sky, holding us all within its embrace, but lifted up too high for any one to reach it with a sacrilegious hand. Like the sky, it comes down as the beneficent air, which surrounds us at every step and at every moment, supplying us with the element of political life, and yet so soft, so yielding and invisible, that we do not think of it as we engage in the work or enjoy the happiness of every day. Soft, yielding, and invisible is this sweet air we breathe and live upon;

and yet it may, when there is need, put forth its strength, and who can stand against the might of the unfettered wind!

The strength of our constitutional government must reside in its gentleness, and in the opportunity which is given by its gentleness, for passion to calm down, and stubbornness to melt away, and the wanderer to return, and that which is right and best to become manifest to all men. It must reside in its patient forbearance while that is possible, and in its cautious mildness as far as that is possible; in its power, derived from this very gentleness, of adaptedness to every exigency; and, therefore, of adequacy to any exigency which may call upon it, either to bring into action its whole irresistible might, or to take any other course which a comprehensive and clear-sighted wisdom may approve.

Nor is our constitution a fetter imposed by the past upon the present and the future, fixed and crystallized into forms which may be broken but cannot change. The exact opposite of this is the truth. It is a living organism. It invites and provides for change. It desires all changes, in all time, which shall make it ever more able to perform its great functions. But it carefully provides that these. changes shall come only as a common demand, shall be matured by a common deliberation, and rest on a common consent; common, not universal, for that it is too wise to require or to expect.

CHAPTER II.

HISTORY OF THE CONSTITUTION OF THE UNITED STATES.

SECTION I

EVENTS BEFORE THE WAR OF INDEPENDENCE.

We might trace back to the very beginning of history, the series of events which led to the formation of our constitution. We can only glance at this series now. Let us begin with the inquiry, what the best government must be; and the answer should be, in one word, self-government. On this topic, as on so many others, we may be helped by remembering that as a nation is composed of men, it cannot contain any other elements of national character than those which are contributed by the men of the nation. And when we look at men individually, and from the study of human character

reach certain definite laws and conclusions concerning human life in the individual, we may well hope that these laws and conclusions will throw some light upon similar questions as they exist in reference to a nation.

The best definition or description of a republican constitutional government may be found in the often-quoted words of President Lincoln. It is a government "of the people, by the people, for the people." But these words are often used with an ignorance or disregard of their exact and most important meaning; for they are used as if government "of" the people and government "by" the people meant the same thing. There can be no greater mistake. Government of the people means that the people shall be governed; as really and effectually governed as under any form of government. But never oppressively or tyrannically, because they are governed by themselves. They govern themselves, for and in their own best interests. And if they are not governed, if they do not govern themselves, those interests are disregarded and defeated. For what is the best government for an individual? If I put the question in another shape, if I ask whether he is best governed who is surrendered to his own fantasies and proclivities and lusts, and exasperates all these by utter unrestraint, and makes no reference to right or wrong, or the law of God or the law of man, the question answers itself. I am describing a man who has done all that he can do to become only a wild beast. Better were it for him that some arm of power should hold him, some fear restrain him, some irresistible command control him, and all these influences compel him to decent conduct. Then, it might at least be possible that his lusts and follies, because they were repressed, would be enfeebled. If so, it might again be possible that the severity of external control could be safely relaxed; that some acknowledgment of law, some thought of right, would begin to exert a power within him, and thereby facilitate the entrance of yet better thoughts and higher motives, and that this advancing and ascending progress might go on, until a control from within accepted and welcomed a control from without as a necessary help. And the consummation of all this would come when the law of truth, of right, and of instructed conscience was all the law he needed, all the law he felt; and this law put him at ease with the system of law prevailing all around him, and the man stood and lived in perfect peace with the law and perfect peace with himself.

This is but an ideal picture; far from the reality existing in the best of us. It is, however, a picture of that last result towards which we are led by all moral improvement, all elevation of motive, all recognition of the authority of right, and all confirmation of our love of goodness.

I cannot but think that the history of the past and the condition of the present lead to the conclusion that a law and method of progress, somewhat analogous at least, prevail in the growth of nations. History is but the biography of man; and the lessons which are taught by the life of mankind cannot be altogether remote and diverse from those we may gather from the lives of men.

To see how the progress of mankind has accorded with these principles, we must go far back towards the beginning; and it is of course impossible to give more than the most cursory glance at the evidence which the pages of history offer. But even this glance will show us that while government was known only as unmitigated despotism in the Eastern and ancient world, it received important modifications as it passed through Greece; and that the despotism of the central power of the vast empire of Rome was accompanied with a singular amount of freedom and self-government in the vities and boroughs and lesser provinces into which the Roman empire was divided. In this way some preparation was made for the feudal system, which was, in theory, a government of laws and not of men, for it assigned his own place and his own rights to every man. And so the possibility of deliverance from a wholly external control, from a power which was over him and against him, instead of one which was accepted by him as his own and as self-imposed, grew from age to age.

A few centuries ago, four great discoveries, or rather the bringing within reach and use of four things known but neglected before, came near together and distinguished that period from any other in history. One of these was the mariner's compass; and it guided Columbus to America. The discovery of this continent was another. Gunpowder, the third, made the subjection of this continent easy and rapid. And the press, which was the fourth discovery, diffused among expecting nations the tidings of this new world, and spread widely a knowledge of the advantages which it offered; and this soon brought to our shores the beginning of a new population. This grew up under the fostering and needed care of the parent races, until the colony was strong enough to become a State.

Something like this had often happened before. History is full of stories of successful colonization, and of young nations which cast off dependence when they were strong enough to break their fetters. But something else happened now that never occurred before. In all previous instances where colonies grew into States, they became substantially what their parents were. When the new shoot was rooted, it was the old tree again, with more or less unimportant change from soil or climate or position. Not so here. Our colonial fathers were at first subjects of a king, as all the in