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induced to declare the supposed causes illegal, has been revived; and all these so-called natural rights, which the framers of our constitutions declared to be! inalienable, and the violation of which they pronounced to be a just cause for rebellion, are in imminent danger of serious infringement. The State is called on to protect the weak against the shrewdness of the stronger, to determine what wages a workman shall receive for his labor, and how many hours he shall labor. Many trades and occupations are being prohibited, because some are damaged incidentally by their prosecution, and many ordinary pursuits are made government monopolies. The demands of the Socialists and Communists vary in degree and in detail, but the most extreme of them insist upon the assumption by government of the paternal character altogether, abolishing all private property in land, and making the State the sole possessor of the working capital of the nation.

Contemplating these extraordinary demands of the great army of discontents, and their apparent power, with the growth and development of universal suffrage, to enforce their views of civil polity upon the civilized world, the conservative classes stand in constant fear of the advent of an absolutism more tyrannical and more unreasoning than any before experienced by man,—the absolutism of a democratic majority.

In these days of great social unrest, we applaud the disposition of the courts to seize hold of these general declarations of rights as an authority for them to lay their interdict upon all legislative acts which interfere with the individual's natural rights, even though these acts do not violate any specific or special provision of the Constitution. These general provisions furnish sufficient authority for judicial interference. As Judge Cooley' has forcibly said in respect to the regulation of trades and professions:

What the legislature ordains and the constitution does not prohibit must be lawful. But if the constitution does no more than to provide that no person shall be deprived of his life, liberty, or property, except by due process of law, it makes an important provision on this subject, because it is an important part of civil liberty to have the right to follow all lawful employments.”

The cases in which these general provisions of the Constitution have been declared by the courts to be binding upon the government, are numerous. At an early day, it was judicially decided in Massachusetts that slavery was abolished in that State by a provision of the State constitution, which declared that “all men are born free and equal, and have certain natural, essential, and inalienable rights,” etc.'

Daily the courts are declaring acts of the legislature to be unconstitutional, because they violate pri

1

Cooley on Torts, p. 277.

See Draper's “Civil War in America," vol. i., p. 317; Bancroft, “Hist. of U. S.," vol. x., p. 365 ; Cooley's “Principles of Const.," p. 213.

vate rights, guaranteed by no other provisions of the constitutions, but these general declarations of rights. To quote from a late decision of the New York Court of Appeals':

“The main guaranty of private rights against unjust legislation is found in that memorable clause in the bill of rights, that no man shall be deprived of life, liberty, or property without due process of law. This guaranty is not construed in any narrow or technical sense. The right to life may be invaded without its destruction. One may be deprived of his liberty in a constitutional sense without putting his person in confinement. Property may be taken without manual interference therewith, or its physical destruction. The right to life includes the right of the individual to his body in its completeness and without dismemberment ; the right to liberty, the right to exercise his faculties, and to follow a lawful avocation for the support of life; the right of property, the right to acquire property and enjoy it in any way consistent with the equal rights of others and the just exactions and demands of the State."

1 Bertholf v. O'Reilly, 74 N. Y., 509.

CHAPTER VII.

THE CONSTITUTION IN THE WAR OF SECESSION.

It is very common to hear that, in the effort to save the Union from dismemberment, the provisions of the Constitution for the protection of the individual against tyranny and oppression were set aside, and interferences with personal liberty were commonly practised, in violation of express provisions of the written Constitution. This charge is true in two important particulars. In the first place, the President, by his proclamation and without the consent of Congress, suspended the right to the writ of habeas corpus, and authorized military commanders to arrest and imprison any person reasonably sus pected of treasonable practices, instructing such commanders to reply to any writ of habeas corpus to the effect that the imprisonment was by order of the President.

An attempt was made to prevent the enforcement of this proclamation, by an appeal to the ChiefJustice of the United States, Mr. Taney. A writ of habeas corpus was issued by him, while sitting in chambers at Baltimore, commanding the body of one Merryman to be brought before him. Merryman had been arrested and imprisoned by order of a military commander, under these directions of the President; and in obedience to these instructions he made return to the writ, refusing to deliver up his prisoner, stating the reason for his detention, and the authority of the President to suspend the writ of habeas corpus. Chief Justice Taney filed an elaborate opinion, in which he maintained that the power to suspend the writ of habeas corpus was vested by the Constitution in Congress, and not in the Executive.' This opinion was ignored by the President, and arrests were made whenever the public safety was supposed to require it. This collision between the executive and judicial authority naturally caused a great deal of discussion, and numerous were the pamphlets, which were at the time issued to prove the true constitutional rule in the case. The most noteworthy of these arguments was that of Mr. Horace Binney, who took the side of the President, holding that he must of necessity possess the power to suspend the writ, since reason as well as experience proved that to be of value in the suppression of rebellions and insurrections, the right of suspension must be exercised promptly, more promptly at

See Ex parte Merryman, Taney's Circuit-Court Decisions, Campbell's Rep., 246.

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