§16. Disunion that act, they had felt the duty of obtaining the co-operation to it, of a majority of the destroys Fed eral Citizen- whole people, by requiring the concurrence of majorities in nine out of the thirteen ship. States,' and they had neither prepared nor proposed any measure of compulsion, to The assent of draw the people of any of the possibly dissenting States into the new partnership, the majority of against their will. They passed upon the old confederation the same sentence, which the whole people required. they had pronounced in dissolving their connexion with the British nation, and they pledged their faith to each other anew, to a far closer and more intimate connexion. It is admitted, it was admitted then, that the people of Rhode Island, and of North lina could not Carolina, were free to reject the new Constitution; but not that they could justly have objected claim the continuance of the old Confederation. The law of political necessity, expounded by the judgment of the sovereign constituent people, responsible only to God, had abolished that. The people of Rhode Island and of North Carolina, might dissent from the more perfect Union, but they must acquiesce in the necessity of the separation."

Rhode Island and N. Caro

to Secession.

A State created to have an er, to promote

federation be

A State, a Nation, a Commonwealth, is created chiefly to bring into absolute pow- existence an authority and power, unaccountable, uncontrollable except its best good. by Deity, to promote the general good and best interests of the population within its bounds. While it has no right to trespass upon another State in any shape or manner, except for its own real defence, it is bound to The first Con- use all legitimate and proper means to advance its own prosperity. Maniing imperfect, festly, a State has no right to make a compact that militates against its general welfare, and one so made is in its nature void or voidable at the will of any party to it, notwithstanding it may be observed. The wise and good men of the Revolution, in the stirring times of war, independence suddenly forced upon them, not having the books and knowledge requisite to frame a Confederation of free States, it is not surprising that their first effort proved a failure; and not only was it their right, but their duty also to break away from a compact so inadequate to accomplish its purposes as was the first.

the States rightfully broke it.

The new Constitution legal:

Rightfully and legally, then, was the new Constitution ratified, granting a new charter to the body politic of the United States, which con-makes fel- tains this clause: "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." This, in more correct language than the first Constitution, makes the Citizens of each of these States, fellow Citizens of the States united.

low citizens.

New States admitted to fellow Citizenship.

A majority of the whole people of the U. S. not important in the Ratification.

Allusion has been made to the cession of the territory northwest of the Ohio to the States united, out of which five States have been created, and, by provision of the Federal Compact, admitted into the Federal Union; and the same rights are granted to the new, that belonged to the

1 It was a merely accidental circumstance of not the least consequence, we judge, that by a small amount, the nine smallest States outnumbered the four largest States. The Sovereign Will of Delaware operated with equal power in establishing over its subjects the new Federal Authority, as did that of New York within its domain.

2 But for the middle sentence, unfortunately interposed, that paragraph would have been an Adams creates enthymeme that would have delighted Bentham equally with any of Blackstone's. The antea new sort of cedent and consequent put North Carolina and Rhode Island in an awkward fix, but "the law of State, with dif- political necessity" is inexorable, particularly when "expounded by the judgment of the sovereign ferent powers, from that of constituent people, responsible only to God." It might, however, be asked, if reference be here Grotius, &c. intended, as is supposed, to the whole "People" of the United States, what sort of a “sovereign constituent people" that can be, of which the individual members are free to adopt or to reject its Constitution? to depart from, or to acquiesce in, a more perfect Union? That is a new organization of a People, and a different sort of Sovereignty, from any Pufendorf describes.

ship.

old States. One of these new States is Illinois, of which I have been for § 16. Disunion destroys Fedthirty years a resident, and for twenty-six years a Citizen. Hence, it is eral Citizenmy privilege to enjoy the lofty honor of greeting you as my fellow Citizens of the United States of America; the proudest, noblest Citizenship ever of them. known to man.

§ 17.-FEDERALISM IMPORTANT TO PROTECT CITIZENSHIP.

-Illinois one

We are fellow-
Citizens.

stituted to in

tion.

But Citizenship is to be valued, not only for the eminent honor of hav- States are coning a voice in the election of our rulers; its worth consists chiefly in the sure subjec protection it affords. We are in a world of selfishness and wrong, manifest in State action as well as in individual men, and a man or a People that pays due regard to its interests, will make itself safe, so far as it reasonably may, against unjust aggressions from any and every quarter. It is not to give liberty, it is to create a right and power of subjection, that States are instituted; it is not to maintain equality in the social organization, but inequality, that Governments are framed; and the more perfectly is this accomplished, the less oppressed thereby is the faithful subject, the more are the State and its Government to be esteemed and sustained. It is for man fallen, selfish, depraved, that authority must be Rulers liable instituted; and as the authority must be administered by the same erring need checksmortals, it becomes the important problem, as Calhoun well shows, how the exercise of this authority can be itself properly regulated. And probably in the sequel, it will appear that by GoD's kind providence, not by our own wisdom, for we have never comprehended the excellences of our Government, have we been led to frame, by union of State and Federal Federalism Agencies, the most perfect system of checks and balances the world ever had.

to err, and

gives them.

of them.

stood Roman

In our growing ignorance, which as thick darkness has settled upon Our ignorance rulers and ruled, we have lost sight of these essentials; and those in authority seem to care very little for the checks in wisdom put upon them. Paul understood this subject of Citizenship and protection, and a Paul underlittle circumstance in his history may well be considered. Arrested by Citizenship. the military authorities of the Empire, in a tumult at Jerusalem, he was given to subordinates, by the chief captain, to examine by scourging. "And as they bound him with thongs, Paul said unto the centurion that Acts xxii, 25. stood by, Is it lawful for thee to scourge a man that is a Roman and uncondemned?" The centurion forbears, and going to his captain, says, "Take heed what thou doest, for this man is a Roman." The captain, returning to Paul, inquires, "Art thou a Roman?" He said, "yea." "With a great sum," said the captain, "obtained I this freedom;" and Paul, with that dignity which must have pertained to the great Apostle of the Gentiles, observes, "but I was free born." Far off in the Roman The protection province of Judea, the despised Christian, who enjoyed the privilege of Citizens. Citizenship of Rome, was sure of the protection of its Government. The military, even in that military State, and not in the days of the Commonwealth, when the high privileges of Citizenship were far more perfectly en

Rome gave its

ism important

to protect Citizenship.

Our system

than Rome's

$ 17. Federal- joyed, but after several Emperors had for half a century possessed the sovereign power, was wholly subordinate to the civil authority. With a much more perfect system of checks on a wrong exercise of power than more perfect Rome ever knew, it will not be one of the least interesting and important subjects to consider, how it is that our fellow Citizens of the United -yet Citizen- States, instead of being protected by their Federal Government, are most ship outraged. infamously outraged in their most sacred rights. When corrected in our theories as to Government and Sovereignty, such insufferable blunders and wrongs as we now patiently endure, will be neither tolerated nor committed.'

Habeas Corpus. President

1 The subject of this Section, "Federalism important to protect Citizenship," is one of the Lincoln's cor- most interesting to be considered, and the appearance of the correspondence between the Presirespondence dent and the Albanians, causes regret that more space cannot be here allotted. The lamentable with the Albanians. occurrences, however, under the present Administration, do not at all disprove the claims made It is not Fed- in behalf of Federalism. It is not Federalism, but its desertion, that leads to these wrongs, and the eralism, but its differences of opinion concerning them; and let the sufferer wait patiently till time and opportudesertion that nity shall enable our Citizens to reach the deserters of Federalism through the ballot box, and causes these through the courts of justice instituted to take cognizance of, and rectify the wrongs and injustice blunders of any inconsiderate or base subject, who should dare to usurp the prerogatives of Sovereignty, by Wait a little to see the excel- acting contrary to the letter of his authority, the Constitution, and we shall then be able to judge lences of Fed- of the real worth of Federalism. eralism.

the President

Habeas Cor

This correspondence shows more than ever the necessity of recurring to elementary principles. Albanians talk The Albanians speak of "a civil war," and the President affirms that they admit it to be "a rebelof "civil war." lion;" and basing his argument on this mistaken hypothesis, does he go on to argue his right to susof "rebellion." pend the writ of habeas corpus, &c. Though space cannot be taken to do justice to this great subject of habeas corpus, which will be at length considered in Part III, Wrongs by the North, in pus discussed connection with the views of Mr. Binney, Professor Parker and others, it may be well in this in Part III. compend to intimate a little of what would seem to be the result of abandoning the teachings of The difference Locke and of Blackstone, and adopting those of Hooker, Grotius, and Vattel. It will serve, in a between Mon- measure, to discover the difference between the exercise of Sovereignty, the Right of Command, archy and a by a Monarch, and by free Peoples.

free State. The subject in Britain, from the highest prince to the lowest beggar, owes allegiance to his In Britain the subject owes Monarch; the Monarch owes protection to his faithful subjects. These obligations are reciprocal. allegiance, the The King can do no wrong, being above the law, as Grotius proves, quoting St. Hierom and St. Monarch pro- Ambrose, who refer to David's penitential Psalm where he says. "Against Thee, Thee only, have tection. I sinned, and done this evil in Thy sight." Says St. Ambrose, "David was a King, and so subject GROTIUS i, c. to no Laws; for Kings are free from those shackles, wherewith their subjects' crimes do entangle 8, § 20. them; they fear no punishments, being secured by the power of the Empire." And Grotius adds: King above "To man therefore he sinned not, because to him he was not accountable for his actions." But law. though the King could do no wrong, he could not personally attend to every affair of Government, Though the and must appoint subordinates to aid him. These might do wrong, sometimes make improper King does no wrong, his arrests, and the King, the faithful guardian of his faithful liege subjects, in order to save from unagents do. just imprisonment, granted to all indiscriminately "the privilege of the writ of Habeas Corpus.” Sometimes ar- The theory of this is, that the King, properly jealous of his subjects' rights, believing them to be rest improper- innocent till they are proved guilty, issues in his own name, by his Judges appointed for the purly. pose, his command to bring the body of his faithful subject before a Court, to inquire wherefore King inquires his precious liberty had been infringed. If no adequate cause be found for his arrest and impris why, by Habeas Corpus. onment, he is discharged; and in all but capital offences, admitted to bail, even if probable guilt be discovered. Charles I, in order to secure these privileges, granted to his faithful subjects the Petition of Right; and there being a corrupt court known as the Star Chamber, that by some adverse influences or other prevented the subjects from properly exercising "the privilege of the writ of habeas corpus," that was abolished by the king with the advice of Parliament.

Endeavors of Charles I to secure his subjects.

Charles II, Habeas Cor pus Act, 1679.

Statutes at

p. 874.

It being still found, that notwithstanding the admirable theory, somehow or other in practice, subjects did get into limbo unjustly, the Lords and Commons in Parliament assembled in 1679, prevailed upon that pattern monarch, "the King's most Excellent Majesty,” Charles II, to pass that celebrated act entitled, "An act for the better securing the Liberty of the Subject, and for the Prevention of Imprisonments beyond the Seas." It recites:

"Whereas great delays have been used by Sheriffs, Gaolers. and other Officers, to whose Custody any of the King's Subjects have been committed for criminal or supposed criminal Matters, in Large, vol. ill, making Returns of Writs of Habeas Corpus to them directed, by standing out an Alias and Pluries Habeas Corpus, and sometimes more, and by other shifts to avoid their yielding Obedience to such Writs, contrary to their Duty and the known Laws of the Land, whereby many of the King's Subjects have been, and hereafter may be long detained in Prison, in such cases where by law they are Bailable, to their great Charges and Vexation:

"II. For the Prevention whereof, and the more speedy relief of all Persons imprisoned for any such criminal or supposed criminal Matters; be it enacted by the King's most Excellent Majesty, by and with the Advice and Consent of the Lords Spiritual and Temporal, and Commons, in this

ism important

Citizenship.

Strength in a

the protection

A Citizen, too, wants strength in his State, or in its alliance offensive § 17. Federaland defensive, to preserve it against dangers from foreign States. A to protect trifling inducement is it for a worthy man, whether poor or rich, to become a Citizen of an insignificant Commonwealth, for the meagre honor State increases of electing rulers, who would have no ability to defend the State and its of Citizens. Citizens against aggressions of other States. Selfish as are individual States liable to men, so are the States of earth, and every one of them is liable to encroachment and wrong; and no authority being constituted to judge between nations generally, it often becomes necessary to resort to the ultima Force someratio regum, the last reasoning of Kings, to maintain their rights. John

present Parliament assembled, and by the Authority thereof [and it goes on to provide that upon the writ of habeas corpus, a trial shall be had in three days], unless the Commitment aforesaid were for Treason or Felony, plainly and specially expressed in the warrant of Commitment, [&c. and section x. provided that if any of the rascally subjects of his excellent Majesty, Judges, Barons, &c., should dare to refuse to grant this prerogative writ], they should severally forfeit to the prisoner or party grieved the sum of £500.'

err.

timesrequired.

Hallam states that in the reign of Charles I, five knights were arrested for refusing to submit HALLAM's acto forced loans to the king, who sued out writs of habeas corpus, to which returns were made count of the that the parties" were detained by a warrant from the privy council, informing him of no particu- occasion of this lar cause of imprisonment, but that they were committed by the special command of his majesty."

act.

"The fundamental immunity of English subjects from arbitrary detention, had never before been Constitution

so fully canvassed; and it is to the discussion which arose out of the case of these five gentlemen al History, i, that we owe its continued assertion by parliament, and its ultimate establishment in full practical 820. efficacy by the statute of Charles II."

Prior to that act, it appears that practice under the writ varied, but when the King graciously How this Act enacted that his judges and officers should do precisely so and so for the protection of his faithful afforded secusubjects, those officials must obey; and the proceedings in the case of habeas corpus having at rity, length taken the form of a statute, the King himself could not thereafter alter them or interfere with their operation, because it had become the established custom that laws should not be altered

or suspended without the assent of the Lords and Commons. Hence it is that only by the concur- Laws only alrence of Parliament, can "the privilege of the writ of Habeas Corpus" be suspended; nor is the tered by conSovereignty of the Crown at all impaired by this constraint, because it is supposed to be, as Vattel sent of Parliastyles it, "an engagement into which he has very willingly entered," it being for the best good of his kingdom.

ment.

Now these Sovereign Peoples of ours are even more jealous of the liberties of their subjects, Our Soverthan ever were our English Monarchs. They have to employ officers for the protection of their eignties equalown Majesties, and also for the defence of their loyal subjects; but these judges and gaolers, like ly jealous for their subjects. those of England, may do wrong, and innocent men may get into custody. Therefore the prerogative writ of habeas corpus, is equally necessary here as there. "The privilege of the writ of habeas corpus," has come to be one of our natural rights as Anglo-Saxons, in the enjoyment of Habeas Corwhich our Sovereignties desired to protect us; and as in these Republican Democracies the Right pus a necesof Command is of necessity altogether exercised by agents, it has been arranged that the mode of Sary safeguard. obtaining and administering justice by means of this great writ, should be controlled by funda- Its "privilege" mental laws, called Constitutions, and by statute laws enacted by the Legislatures. Though it be regulated by. a natural right to have "the privilege" of this writ, yet the mode of its exercise depends altogether law.

on the laws; and wherever the Legislative power resides to pass the original law, either funda

mental or statute, there is to be found the authority to alter, to suspend, or to abrogate that law.

In creating the Federal Legislature, authority is given it upon various subjects, and section 8 The Federal concludes: "To make all Laws which shall be necessary and proper for carrying into Execution the Constitution, Art. i, § 8, foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States or in any Department or Officer thereof." The writ of habeas corpus was of course "necessary" to any Government of Anglo-Saxons, and yet the Federal Agency being one of strictly limited powers, it might have been doubtful whether the right to issue this prerogative writ had been delegated to this Agency, but for the second clause of the ensuing section of the Constitution, -authorizes which in great wisdom puts a check upon Congress in the exercise of its legislative powers enu- the control by Congress of merated in the previous section, one of which is, "The Privilege of the Writ of Habeas Corpus the "privishall not be suspended, unless when in cases of Rebellion or Invasion the public Safety may re- lege," quire it." Thus negatively is the right of Congress recognized to pass laws to regulate the process in cases of of this writ, otherwise it could never have had power to "suspend;" and so properly jealous are rebellion. these Sovereignties of preserving to their loyal subjects “the privilege of the writ," they declared positively that it shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."

Who would ever imagine that Anglo-Saxons of talent and learned in the law, would argue, A quere. that this great safeguard of liberty, "the Privilege of the Writ of habeas corpus," rested upon the doubt whether a great or little "Rebellion" existed in the State or not? "In cases of Rebellion or

to protect Citizenship.

The strength of Britain.

$17. Federal- Quincy Adams thought force constituted the chief element in Internaism important tional Law; and without doubt, with us, who so much better understand and employ practice than theory, strength will be duly estimated. When A strong State then desirable. brute force is requisite, Citizenship in a powerful State or Federal Union is preeminently desirable, for the more powerful the Government, the less its liability to encroachment. What an honor, what a security, to be even an imperfect Citizen of our mother-land, in order to be protected by a 'power which," in the language of New-England's great statesman, "has dotted over the surface of the whole globe, with her possessions and military posts, whose morning drum-beat, following the sun, and keeping company with the hours, circles the earth with one continuous and unbroken strain of the martial airs of England." But for the confusion of terms and ignorance of governmental principles, which are nevertheless clear as the light, and straight as an arrow, the power of these States would still have been Britain's, and we should indeed have had Can we pro- safety. Are we able independently to secure adequate protection?

We might have had her protection.

vide protec

tion.

See p.

78.

Citizenship in

and France.

Though we have gone successfully through two wars with even Britain herself, yet was it as the United States; it remains yet to prove our capacity to keep these States united; or, if disunited, that we have ability to attack and defend.

Very important in this connection are the examples, already referred Protection of to, of Greece, Rome, and France. The first exhibits the power of small Greece, Rome, States to protect each other and their individual subjects, when united in a Federal league; the two latter, strikingly exemplify the danger to which Citizenship is exposed, when protected only in a single Republic. Invasion," and when "the public Safety may require," then "the Privilege" may be suspended. That is the fair construction. In a little "rebellion " it would not be necessary, and will the wise men of this generation undertake to affirm that the fathers were such simpletons as to deprive themselves and posterity of "the privilege" of this writ in the event of a little rebellion? Their language is singular if they so intended.

The "privi

lego" may be suspended, if necessary.

Somebody must suspend

it.

Only the party

that can pass the law can suspend it.

Then if it be not "suspended," in the event of any rebellion of however small degree, ipso jure, by the law itself, some party must have the power of deciding when the case of rebellion or invasion reaches such degree that "the public safety may require" the temporary suspension of “the privilege of the writ." Some party, too, must be authorized to "suspend" "the privilege." "The privilege of the writ" is universal, regulated and controlled by public and general laws, and unless there were a provision in the law itself providing for its suspension by some authorized party, in certain emergencies, of course another law must be passed to suspend "the privilege," as well as King of Britain to make any other alteration. This is the theory and the practice in Britain, and their security in cannot sus- the enjoyment of "the privilege" of this prerogative writ, rests in the fact, that they have now pend Habeas the right regulated by statute law, which not even the King can "suspend" without sanction of Corpus. Parliament.

-meant to have none.

This Habeas Corpus writ a protection.

These Peoples But these free Peoples had no King to interfere with them in "the privilege of the writ of have no King habeas corpus," or in any other "privilege" or right; and what is more, they took good care to guard against the possibility of being ruled by the one-man power, their special abhorrence; and in the whole Federal Constitution, is no clause that so effectually protects them against that evil, as this negative provision concerning the habeas corpus writ. It is well understood, of course, that in this country, where authority is so distinctly distributed to the various Agencies, each Department is strictly confined to its own province, and here this negative provision is found in its appropriate place among the restrictions placed upon Congress. Who of the patriots of '87 to '89 could have ever imagined that, in less than a century, the whole nature and genius of our institutions would be so misunderstood and perverted, as that the President of the United States would even dare to suspend "the privilege of the writ of habeas corpus"? Could anything human move the dead, Bostonians would be started out of their lethargy, by the bones of Samuel Adams, Parsons, Sumner, and the other patriots stalking about the old church in Long Lane, where they ratified the present Constitution, and then significantly changed the name of the street to FEDERAL. And so all over the land would the fathers rise from their graves in astonishment, at the degener. acy of their sons.

Each Department restrict

ed.

Our ignorance of principles

would, if possible, raise the dead.