A Letter to Grover Cleveland Part 17

In South Carolina, neither the yeas nor nays are given. (Elliot, Vol. 1, p. 325.)

In Georgia, the yeas were 26; _nays not given_. (Elliot, Vol. 1, p.

324.)

We can thus see by what meagre votes the const.i.tution was adopted. We can also see that, but for the prospect that important amendments would be made, specially for securing the natural rights of the people, the const.i.tution would have been spurned with contempt, as it deserved to be.

And yet now, owing to the usurpations of lawmakers and courts, the original const.i.tution--with the worst possible construction put upon it--has been carried into effect; and the amendments have been simply cast into the waste baskets.

Marshall was thirty-six years old, when these amendments became a part of the const.i.tution in 1791. Ten years after, in 1801, he became Chief Justice. It then became his sworn const.i.tutional duty to scrutinize severely every act of congress, and to condemn, as unconst.i.tutional, all that should violate any of these natural rights. Yet he appears never to have thought of the matter afterwards. Or, rather, this ninth amendment, the most important of all, seems to have been so utterly antagonistic to all his ideas of government, that he chose to ignore it altogether, and, as far as he could, to bury it out of sight.

Instead of recognizing it as an absolute guaranty of all the natural rights of the people, he chose to a.s.sume--for it was all a mere a.s.sumption, a mere making a const.i.tution out of his own head, to suit himself--that the people had all voluntarily "come into society," and had voluntarily "surrendered" to "society" all their natural rights, of every name and nature--trusting that they would be secured; and that now, "society," having thus got possession of all these natural rights of the people, had the "unquestionable right" to dispose of them, at the pleasure--or, as he would say, according to the "wisdom and discretion"--of a few contemptible, detestable, and irresponsible lawmakers, whom the const.i.tution (thus amended) had forbidden to dispose of any one of them.

If, now, Marshall did not see, in this amendment, any legal force or authority, what becomes of his reputation as a const.i.tutional lawyer? If he did see this force and authority, but chose to trample them under his feet, he was a perjured tyrant and traitor.

What, also, are we to think of all the judges,--forty in all,--his a.s.sociates and successors, who, for eighty years, have been telling the people that the government has all power, and the people no rights? Have they all been mere blockheads, who never read this amendment, or knew nothing of its meaning? Or have they, too, been perjured tyrants and traitors?

What, too, becomes of those great const.i.tutional lawyers, as we have called them, who have been supposed to have won such immortal honors, as "expounders of the const.i.tution," but who seem never to have discovered in it any security for men's natural rights? Is their apparent ignorance, on this point, to be accounted for by the fact, that that portion of the people, who, by authority of the government, are systematically robbed of all their earnings, beyond a bare subsistence, are not able to pay such fees as are the robbers who are authorized to plunder them?

If any one will now look back to the records of congress and the courts, for the last eighty years, I do not think he will find a single mention of this amendment. And why has this been so? Solely because the amendment--if its authority had been recognized--would have stood as an insuperable barrier against all the ambition and rapacity--all the arbitrary power, all the plunder, and all the tyranny--which the ambitious and rapacious cla.s.ses have determined to accomplish through the agency of the government.

The fact that these cla.s.ses have been so successful in perverting the const.i.tution (thus amended) from an instrument avowedly securing all men's natural rights, into an authority for utterly destroying them, is a sufficient proof that no lawmaking power can be safely intrusted to any body, for any purpose whatever.

And that this perversion of the const.i.tution should have been sanctioned by all the judicial tribunals of the country, is also a proof, not only of the servility, audacity, and villainy of the judges, but also of the utter rottenness of our judicial system. It is a sufficient proof that judges, who are dependent upon lawmakers for their offices and salaries, and are responsible to them by impeachment, cannot be relied on to put the least restraint upon the acts of their masters, the lawmakers.

Such, then, would have been the effect of the ninth amendment, if it had been permitted to have its legitimate authority.

SECTION XXVI.

The tenth amendment is in these words:

The powers not delegated to the United States by the const.i.tution, nor prohibited by it to the States, are reserved to the States respectively, _or to the people_.

This amendment, equally with the ninth, secures to "the people" all their natural rights. And why?

Because, in truth, no powers at all, neither legislative, judicial, nor executive, had been "delegated to the United States by the const.i.tution."

But it will be said that the amendment itself implies that certain lawmaking "powers" had been "delegated to the United States by the const.i.tution."

No. It only implies that those who adopted the amendment _believed_ that such lawmaking "powers" had been "delegated to the United States by the const.i.tution."

But in this belief, they were entirely mistaken. And why?

1. Because it is a natural impossibility that any lawmaking "powers"

whatever can be delegated by any one man, or any number of men, to any other man, or any number of other men.

Men's natural rights are all inherent and inalienable; and therefore cannot be parted with, or delegated, by one person to another. And all contracts whatsoever, for such a purpose, are necessarily absurd and void contracts.

For example. I cannot delegate to another man any right to _make_ laws--that is, laws of his own invention--and compel me to obey them.

Such a contract, on my part, would be a contract to part with my natural liberty; to give myself, or sell myself, to him as a slave. Such a contract would be an absurd and void contract, utterly dest.i.tute of all legal or moral obligation.

2. I cannot delegate to another any right to make laws--that is, laws of his own invention--and compel a third person to obey them.

For example. I cannot delegate to A any right to make laws--that is, laws of his own invention--and compel Z to obey them.

I cannot delegate any such right to A, because I have no such right myself; and I cannot delegate to another what I do not myself possess.

For these reasons no lawmaking powers ever could be--and therefore no lawmaking powers ever were--"delegated to the United States by the const.i.tution"; no matter what the people of that day--any or all of them--may have attempted to do, or may have believed they had power to do, in the way of delegating such powers.

But not only were no lawmaking powers "delegated to the United States by the const.i.tution," but neither were any _judicial_ powers so delegated.

And why? Because it is a natural impossibility that one man can delegate his judicial powers to another.

Every man has, by nature, certain judicial powers, or rights. That is to say, he has, by nature, the right to judge of, and enforce his own rights, and judge of, and redress his own wrongs. But, in so doing, he must act only in accordance with his own judgment and conscience, _and subject to his own personal responsibility, if, through either ignorance or design, he commits any error injurious to another_.

Now, inasmuch as no man can delegate, or impart, his own judgment or conscience to another, it is naturally impossible that he can delegate to another his judicial rights or powers.

So, too, every man has, by nature, a right to judge of, and enforce, the rights, and judge of, and redress the wrongs, of any and all other men.

This right is included in his natural right to maintain justice between man and man, and to protect the injured party against the wrongdoer.

But, in doing this, he must act only in accordance with his own judgment and conscience, and subject to his own personal responsibility for any error he may commit, either through ignorance or design.

But, inasmuch as, in this case, as in the preceding one, he can neither delegate nor impart his own judgment or conscience to another, he cannot delegate his judicial power or right to another.

But not only were no lawmaking or judicial powers "delegated to the United States by the const.i.tution," neither were any executive powers so delegated. And why? Because, in a case of justice or injustice, it is naturally impossible that any one man can delegate his executive right or power to another.

Every man has, by nature, the right to maintain justice for himself, and for all other persons, by the use of so much force as may be reasonably necessary for that purpose. But he can use the force only in accordance with his own judgment and conscience, and on his own personal responsibility, if, through ignorance or design, he commits any wrong to another.

But inasmuch as he cannot delegate, or impart, his own judgment or conscience to another, he cannot delegate his executive power or right to another.

_The result is, that, in all judicial and executive proceedings, for the maintenance of justice, every man must act only in accordance with his own judgment and conscience, and on his own personal responsibility for any wrong he may commit; whether such wrong be committed through either ignorance or design._

The effect of this principle of personal responsibility, in all judicial and executive proceedings, would be--or at least ought to be--that no one would give any judicial opinions, or do any executive acts, except such as his own judgment and conscience should approve, _and such as he would be willing to be held personally responsible for_.

No one could justify, or excuse, his wrong act, by saying that a power, or authority, to do it had been delegated to him, by any other men, however numerous.

For the reasons that have now been given, neither any legislative, judicial, nor executive powers ever were, or ever could have been, "delegated to the United States by the const.i.tution"; no matter how honestly or innocently the people of that day may have believed, or attempted, the contrary.

And what is true, in this matter, in regard to the national government, is, for the same reasons, equally true in regard to all the State governments.

But this principle of personal responsibility, each for his own judicial or executive acts, does not stand in the way of men's a.s.sociating, at pleasure, for the maintenance of justice; and selecting such persons as they think most suitable, for judicial and executive duties; and _requesting_ them to perform those duties; and then paying them for their labor. But the persons, thus selected, must still perform their duties according to their own judgments and consciences alone, and subject to their own personal responsibility for any errors of either ignorance or design.

To make it safe and proper for persons to perform judicial duties, subject to their personal responsibility for any errors of either ignorance or design, two things would seem to be important, if not indispensable, _viz._:

1. That, as far as is reasonably practicable, all judicial proceedings should be in writing; that is, that all testimony, and all judicial opinions, even to quite minute details, should be in writing, and be preserved; so that judges may always have it in their power to show fully what their acts, and their reasons for their acts, have been; and also that anybody, and everybody, interested, may forever after have the means of knowing fully the reasons on which everything has been done; and that any errors, ever afterwards discovered, may be corrected.

2. That all judicial tribunals should consist of so many judges--within any reasonable number--as either party may desire; or as may be necessary to prevent any wrong doing, by any one or more of the judges, either through ignorance or design.

Such tribunals, consisting of judges, numerous enough, and perfectly competent to settle justly probably ninety-nine one-hundredths of all the controversies that arise among men, could be obtained in every village. They could give their immediate attention to every case; and thus avoid most of the delay, and most of the expense, now attendant on judicial proceedings.