A Letter to Grover Cleveland Part 14

resided in either.

And the question was never settled, until it was settled at the cost of a million of lives, and some ten thousand millions of money. And then it was settled only as the same question had so often been settled before, to wit, that "the heaviest battalions" are "sovereign" over the lighter.

The only real "sovereignty," or right of "sovereignty," in this or any other country, is that right of sovereignty which each and every human being has over his or her own person and property, so long as he or she obeys the one law of justice towards the person and property of every other human being. This is the only _natural_ right of sovereignty, that was ever known among men. All other so-called rights of sovereignty are simply the usurpations of impostors, conspirators, robbers, tyrants, and murderers.

It is not strange that we are in such high favor with the tyrants of Europe, when our Supreme Court tells them that our government, although a little different in form, stands on the same essential basis as theirs of a hundred years ago; that it is as absolute and irresponsible as theirs were then; that it will spend more money, and shed more blood, to maintain its power, than they have ever been able to do; that the people have no more rights here than there; and that the government is doing all it can to keep the producing cla.s.ses as poor here as they are there.

SECTION XXIV.

John Marshall has the reputation of having been the greatest jurist the country has ever had. And he unquestionably would have been a great jurist, if the two fundamental propositions, on which all his legal, political, and const.i.tutional ideas were based, had been true.

These propositions were, first, that government has all power; and, secondly, that the people have no rights.

These two propositions were, with him, cardinal principles, from which, I think, he never departed.

For these reasons he was the oracle of all the rapacious cla.s.ses, in whose interest the government was administered. And from them he got all his fame.

I think his record does not furnish a single instance, in which he ever vindicated men's natural rights, in opposition to the arbitrary legislation of congress.

He was chief justice thirty-four years: from 1801 to 1835. In all that time, so far as I have known, he never declared a single act of congress unconst.i.tutional; and probably never would have done so, if he had lived to this time.

And, so far as I know, he never declared a single State law unconst.i.tutional, on account of its injustice, or its violation of men's natural rights; but only on account of its conflict with the const.i.tution, laws, or treaties of the United States.

He was considered very profound on questions of "sovereignty." In fact, he never said much in regard to anything else. He held that, in this country, "sovereignty" was divided: that the national government was "sovereign" over certain things; and that the State governments were "sovereign" over all other things. He had apparently never heard of any natural, individual, human rights, that had never been delegated to either the general or State governments.

As a practical matter, he seemed to hold that the general government had "sovereignty" enough to destroy as many of the natural rights of the people as it should please to destroy; and that the State governments had "sovereignty" enough to destroy what should be left, if there should be any such. He evidently considered that, to the national government, had been delegated the part of the lion, with the right to devour as much of his prey as his appet.i.te should crave; and that the State governments were jackals, with power to devour what the lion should leave.

In his efforts to establish the absolutism of our governments, he made himself an adept in the use of all those false definitions, and false a.s.sumptions, to which courts are driven, who hold that const.i.tutions and statute books are supreme over all natural principles of justice, and over all the natural rights of mankind.

Here is his definition of law. He professes to have borrowed it from some one,--he does not say whom,--but he accepts it as his own.

Law has been defined by a writer, whose definitions especially have been the theme of _almost_ universal panegyric, "_To be a rule of civil conduct prescribed by the supreme power in a State._" In our system, the legislature of a State is the supreme power, in all cases where its action is not restrained by the const.i.tution of the United States.--_Ogden vs. Saunders, 12 Wheaton 347._

This definition is an utterly false one. It denies all the natural rights of the people; and is resorted to only by usurpers and tyrants, to justify their crimes.

The true definition of law is, that it is a fixed, immutable, natural principle; and not anything that man ever made, or can make, unmake, or alter. Thus we speak of the laws of matter, and the laws of mind; of the law of gravitation, the laws of light, heat, and electricity, the laws of chemistry, geology, botany; of physiological laws, of astronomical and atmospherical laws, etc., etc.

All these are natural laws, that man never made, nor can ever unmake, or alter.

The law of justice is just as supreme and universal in the moral world, as these others are in the mental or physical world; and is as unalterable as are these by any human power. And it is just as false and absurd to talk of anybody's having the power to abolish the law of justice, and set up their own will in its stead, as it would be to talk of their having the power to abolish the law of gravitation, or any of the other natural laws of the universe, and set up their own will in the place of them.

Yet Marshall holds that this natural law of justice is no law at all, in comparison with some "rule of civil conduct prescribed by [what he calls] the supreme power in a State."

And he gives this miserable definition, which he picked up somewhere--out of the legal filth in which he wallowed--as his sufficient authority for striking down all the natural obligation of men's contracts, and all men's natural rights to make their own contracts; and for upholding the State governments in prohibiting all such contracts as they, in their avarice and tyranny, may choose to prohibit. He does it too, directly in the face of that very const.i.tution, which he professes to uphold, and which declares that "No State shall pa.s.s any law impairing the [natural] obligation of contracts."

By the same rule, or on the same definition of law, he would strike down any and all the other natural rights of mankind.

That such a definition of law should suit the purposes of men like Marshall, who believe that governments should have all power, and men no rights, accounts for the fact that, in this country, men have had no "_rights_"--but only such permits as lawmakers have seen fit to allow them--since the State and United States governments were established,--or at least for the last eighty years.

Marshall also said:

The right [of government] to regulate contracts, to prescribe the rules by which they may be evidenced, _to prohibit such as may be deemed mischievous, is unquestionable_, and has been universally exercised.--_Ogden vs. Saunders, 12 Wheaton 347._

He here a.s.serts that "the supreme power in a State"--that is, the legislature of a State--has "the _right_" to "_deem_ it _mischievous_"

to allow men to exercise their natural right to make their own contracts! Contracts that have a natural obligation! And that, if a State legislature thinks it "mischievous" to allow men to make contracts that are naturally obligatory, "_its right to prohibit them is unquestionable_."

Is not this equivalent to saying that governments have all power, and the people no rights?

On the same principle, and under the same definition of law, the lawmakers of a State may, of course, hold it "mischievous" to allow men to exercise any of their other natural rights, as well as their right to make their own contracts; and may therefore prohibit the exercise of any, or all, of them.

And this is equivalent to saying that governments have all power, and the people no rights.

If a government can forbid the free exercise of a single one of man's natural rights, it may, for the same reason, forbid the exercise of any and all of them; and thus establish, practically and absolutely, Marshall's principle, that the government has all power, and the people no rights.

_In the same case, of Ogden vs. Saunders, Marshall's principle was agreed to by all the other justices, and all the lawyers!_

Thus Thompson, one of the justices, said:

Would it not be within the legitimate powers of a State legislature to declare _prospectively_ that no one should be made responsible, upon contracts entered into before arriving at the age of _twenty-five_ years? This, I presume, cannot be doubted.--_p. 300._

On the same principle, he might say that a State legislature may declare that no person, under fifty, or seventy, or a hundred, years of age, shall exercise his natural right of making any contract that is naturally obligatory.

In the same case, Trimble, another of the justices, said:

If the positive law [that is, the statute law] of the State declares the contract shall have no obligation, _it can have no obligation, whatever may be the principles of natural law in regard to such a contract. This doctrine has been held and maintained by all States and nations. The power of controlling, modifying, and even taking away, all obligation from such contracts as, independently of positive enactions to the contrary, would have been obligatory, has been exercised by all independent sovereigns._--_p. 320._

Yes; and why has this power been exercised by "all States and nations,"

and "all independent sovereigns"? Solely because these governments have all--or at least so many of them as Trimble had in his mind--been despotic and tyrannical; and have claimed for themselves all power, and denied to the people all rights.

Thus it seems that Trimble, like all the rest of them, got his const.i.tutional law, not from any natural principles of justice, not from man's natural rights, not from the const.i.tution of the United States, nor even from any const.i.tution affirming men's natural rights, but from "the doctrine [that] has been held and maintained by all [those] States and nations," and "all [those] independent sovereigns," who have usurped all power, and denied all the natural rights of mankind.

Marshall gives another of his false definitions, when, speaking for the whole court, in regard to the power of congress "to regulate commerce with foreign nations, and among the several States," he a.s.serts the right of congress to an arbitrary, absolute dominion over all men's natural rights to carry on such commerce. Thus he says:

What is this power? It is the power to regulate: _that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed by the const.i.tution._ These are expressed in plain terms, and do not affect the questions which arise in this case, or which have been discussed at the bar. If, as has always been understood, the sovereignty of congress, though limited to specific objects, is plenary as to those objects, the power over commerce with foreign nations, and among the several States, is vested in congress as absolutely as it would be in a single government, having in its const.i.tution the same restrictions on the exercise of the power as are found in the const.i.tution of the United States. _The wisdom and the discretion of congress, their ident.i.ty with the people, and the influence which their const.i.tuents possess at elections, are, in this, as in many other instances, as that, for example, of declaring war, the sole restraints on which they_ [the people] _have relied, to secure them from its abuse. They are the restraints on which the people must often rely_ SOLELY, _in all representative governments_.--_Gibbons vs. Ogden, 9 Wheaton 196._

This is a general declaration of absolutism over all "commerce with foreign nations and among the several States," with certain exceptions mentioned in the const.i.tution; such as that "all duties, imposts, and excises shall be uniform throughout the United States," and "no tax or duty shall be laid on articles exported from any State," and "no preference shall be given, by any regulation of commerce or revenue, to the ports of one State over those of another; nor shall vessels bound to, or from, one State, be obliged to enter, clear, or pay duties in another."

According to this opinion of the court, congress has--subject to the exceptions referred to--absolute, irresponsible dominion over "all commerce with foreign nations, and among the several States"; and all men's natural rights to trade with each other, among the several States, and all over the world, are prostrate under the feet of a contemptible, detestable, and irresponsible cabal of lawmakers; and the people have no protection or redress for any tyranny or robbery that may be practised upon them, except _"the wisdom and the discretion of congress, their ident.i.ty with the people, and the influence which their const.i.tuents possess at elections"!_

It will be noticed that the court say that _"all the other powers, vested in congress, are complete in themselves, and may be exercised to their utmost extent, and acknowledge no limitations, other than those prescribed by the const.i.tution."_

They say that among "all the other [practically unlimited] powers, vested in congress," is the power "of declaring war"; and, of course, of carrying on war; that congress has power to carry on war, for any reason, to any extent, and against any people, it pleases.

Thus they say, virtually, that _the natural rights of mankind_ impose no _const.i.tutional_ restraints whatever upon congress, in the exercise of their lawmaking powers.

Is not this a.s.serting that governments have all power, and the people no rights?

But what is to be particularly noticed, is the fact that Marshall gives to congress all this practically unlimited power over all "commerce with foreign nations, and among the several States," _solely on the strength of a false definition of the verb "to regulate_." He says that "the power to regulate commerce" is the power "_to prescribe the rule by which commerce is to be governed_."