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engendered lessened by what had been seen of the operations of the state legislatures or even of the Continental Congress. As long as the action of these bodies had been, in Burke's meaning of the term, declaratory, so long had they occupied a commanding position both at home and abroad. But as soon as they had recourse to legislation that was experimental and speculative, they ceased, able and patriotic as were some of the men of whom they were composed, to receive public respect; and it may be questioned whether even of congress the average standard of political sagacity was at any time up to the level of that of the people at large. Nor was the conviction that from mere formal legislation little good was to be expected, the only element which contributed to the restriction of governmental functions within narrow limits. The policy of England, in interfering with colonial manufactures and trade, had been bitterly resented. The people were convinced that if they were to prosper in business, their business should be regulated by themselves. Dr. Franklin has been often referred to as moulding public opinion in this relation, and by his maxims establishing a popular political economy. But it was public opinion that moulded Dr. Franklin, to whose sagacity of perception and felicity of expression the diffusion of this public opinion is due; and the popular political economy dictated his maxims, not his maxims the popular political economy. When he declared that no laws could be better than the people, and that government should not do what the people could do for themselves, he merely spoke what the conscience, the traditions, the conditions, the needs of the people dictated. By

pounds on all imported negroes. "Had this measure been carried," so writes a recent able English historian (Doyle's English Colonies in America, 1882, p. 388), "it must have put an end to the slave trade as far as South Carolina was concerned. It is sad to think that such a measure was frustrated by the cupidity and jealousy of the English government. But it had become a settled maxim of colonial

policy to allow the provincial assemblies no control over external trade, and in all commercial legislation to regard the profit of the English merchant rather than the social and industrial well-being of the colonists. The proprietors and the crown were for once united, and the measure was vetoed," see supra, § 112.

As to short coming of local legislation, see supra, §§ 23, 24; infra, § 595.

Jefferson this position had been enforced with characteristic enthusiasm and eloquence in his letters to Madison; by Madison it had been proclaimed with grave dignity as incontrovertible; it had been assented to by Hamilton. It is not strange, therefore, that this distrust of legislation should find. expression in numerous restrictions in the constitution on the powers both of states and of general government; and that ultimately it should be provided by an amendment that all powers not expressly given to the general government should remain in the states or in the people thereof. This was not a doctrinaire speculation. It was not a fiction of statesmen desirous of establishing a balance of power. It was the voice of necessity and of right. It was what was exacted by the traditions of the past, the conditions of the present, and the conscience of both. The final expression of this distrust of legislation is to be found in the fourteenth amendment by which the power of the state legislatures is so far curtailed as to preclude them from passing any laws taking private property without due process of law, or making any discrimination as to the enjoyment of civil rights. The more conspicuous immediate effect of the reconstruction amendments no doubt was to give the negro race, not only freedom, but political equality with what had been previously the domi nant race. But the effect of these amendments in this respect is temporary compared with their general effect. They emancipated the negro and established equality of civil rights, but there, so far as concerns any discrimination of races, they stop. They do not give the negro any special privileges; they merely prohibit any legislative discrimination being exercised against him. As we contemplate these important amendments, the civil war which ostensibly produced them, and the particular race for which they are supposed to have been adopted, vanish, and what remains are the fundamental provisions, applicable to all races alike, that the property of no person, whoever he be, shall be taken without compensation, and unless by due process of law; and that to no person shall

That this protection is extended persons, will be hereafter seen, infra, to corporations, as well as to private §§ 588-594.

equal rights be refused. Even had there been no civil war, and no race, heretofore enslaved, to be liberated, this provision would have been essential to perfect our political system, so as to establish the principle that there shall be no interference by legislation, either state or federal, with either private property or equality of personal rights 1

1 See more fully, infra, §§ 594-6. Burke, in his speech on the conciliation of America, gave the following reasons for the "fierceness" of liberty in the colonies: "(1) descent; (2) colonial forms of government; (3) religion in the northern provinces; (4) manners in the southern; (5) education; (6) remoteness of situation." Under the sixth head he included the incapacity of the British government to govern colonies separated by three thousand miles of ocean, which it took at least a month to traverse; and the consequent throwing of the people on their own resources, thus virtually inaugurating the laissez-faire system. (Scott, Development of Constitutional Liberty, N. Y. 1882, p. 30.)

The colonies becoming thus accustomed to leave to individual enterprise and competition that which under the older systems was undertaken by government, it is not strange that in framing a central Federal government the framers of the constitution should confer on such Federal government only enumerated and restrictive pow

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with freedom from legislation in all matters which could be controlled by individual action, and who did not base the revolution on the abandonment of this principle by the Grenville administration. Mr. Grenville, so it was said by Horace Walpole, when afterwards, as Earl of Orford, contrasting the Grenville ministry with that of his father, lost America by reading American despatches. (Lord Orford's Memoirs, ii. 32.) To the domineering and laborious temper of Grenville, knowledge of a thing to be regulated prompted at once an attempt at regulation; and this played into the hands of George III., to whom parliamentary checks were odious, and who would gladly have transported to America the absolutism of Hanover. It was natural that the people, who had reluctantly severed their relations with England in consequence of this interference of government with personal rights, should have made freedom from such interference one of the chief principles of the new constitution. And there were few thoughtful men in the country who did not accept the position taken by Burke in his speeches on American conciliation. "It ought to be the constant aim of every wise public council," says Burke, "to find out, by cautious experiment and rational cool endeavors, with how little, not how much, of this restraint (on liberty) the community can subsist. For liberty is a good to be improved, and not an evil to be lessened. It is not only a private blessing of the

institutions

ary.

II. PRINCIPLES OF CONSTRUCTION.

§ 368. The Declaration of Independence starts with the assumption that an oppressed state has a right, American when its liberties are materially invaded, to appeal revolution to arms to throw off the yoke of the oppressor. This right was asserted in the revolution of which the declaration was the proclamation. The colonies, acting through the Continental Congress, had not even the show of legitimacy which was clung to by those concerned in setting up the throne of William III. There had been no withdrawal from or abandonment of royal functions by George III. as there had been by James II. When James II. fled from London the house of peers which welcomed his successor

first order, but the vital spring of
energy in the state itself, which has
just so much life and vigor as there
is liberty in it." It has been the fash-
ion to say that we borrowed these
doctrines from French doctrinaire phi-
losophers. This is not so. Among
the people from whom the revolution
sprang, French philosphers were un-
known. But Burke's speeches on
America found their way into every
American home where there were
readers; and Burke's abhorrence of
speculative legislation, his mainte-
nance of the necessary coexistence of
liberty and law, his upholding of
the merely declaratory character of all
true legislation, his vindication of the
right of nationalities to develop their
own distinctive systems, his advocacy
of checks by which legislatures would
be prevented from smothering this
development, were accepted as part
of the popular American faith.
the doctrines of laissez faire and of
evolution were received in this country
as authority, it was on the authority
of Burke. And when from time to
time those doctrines are stated, it is
consciously or unconsciously in Burke's

If

own terms. By no one, as will be here-
after seen, has this been done more
effectively than by Mr. Lincoln in his
speeches and letters on reconstruction.
Infra. § 593. We have another illustra-
tion of this in the following from an opin-
ion lately given by Chief Justice Waite.
"A good government never puts forth
its extraordinary powers except under
circumstances which require it. That
government is the best which, while
performing all its duties, interferes the
least with the lawful pursuits of its
people." (Waite, C. J., Chicago, etc.
R. R. v. Iowa, 94 U. S. 155.) Over and
over again was this truth stated,
though in other words, by Burke in
his speeches on America, as well as in
his publications on the French revolu-
tion. See supra, § 53. The influence
exercised in this country by Burke is
evidenced not only by the warm ap-
proval of his course in resolutions of
colonial assemblies, but by the fact
that there is scarcely one of the original
states which did not call after him a
county or a town. "Throughout Ame-
rica his name was venerated and be-
loved." Garland's Life of Randolph,
i. 52.

was the legitimate successor of the house of peers which had existed since the memory of man; and the convention house of commons, though irregularly constituted, contained no member that had not been duly elected to serve in one of the prior parliaments. With us the fissure went to the very bottom of the social structure. There was not a colony in which the popular governor, after 1776, was the legitimate successor of the prior royal or provincial governor; there was not a colony whose legislature was elected in accordance with colonial precedent; and, what is still more important, the Continental Congress was called into being, not by the king, nor by the English Parliament, but in direct defiance of both parliament and king. Nor, even assuming that the Continental Congress, or the colonies it represented, instituted a new system, could the new government of the United States be regarded as the legitimate successor of such system. The articles of confederation required the unanimous assent of the states to organic changes; the constitutional convention provided that "the ratification of the convention of nine states shall be sufficient for the establishment of this constitution between the states so ratifying the same." Rhode Island and North Carolina withheld for some time their ratification; yet the new government went into operation, although its institution, as far as concerns the Continental Congress, was revolutionary. Revolution, however, is not, as we have seen, to

"In fact the constitution was ratified by conventions of delegates chosen by the people in eleven of the states before the new government was organized under it; and the remaining two, North Carolina and Rhode Island, by their refusal to accept, and by the action of the others in proceeding separately, were excluded altogether from that national jurisdiction which before had embraced them. This exclusion was not warranted by anything contained in the Articles of Confederation, which purported to be articles of 'perpetual union;' and the action of the eleven states in making the radical

revision of the constitution, and excluding their associates for refusal to assent, was really revolutionary in character, and only to be defended on the same ground of necessity on which all revolutionary action is justified, and which in this case was the absolute need, fully demonstrated by experience, of a more efficient general government." Cooley, Const. Lim., 4th ed., 8.

In the sense above given may be explained Mr. Webster's remark on the Foot resolutions: "It is the people's constitution; the people's government; made for the people, made by the people, and answerable to the people."

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