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LEGISLATIVE ENCROACHMENTS UPON PRIVATE
BY JUDGE T. L. STILES.
It is said that the American Declaration of Independence is the most remarkable document, outside of inspiration. It would have been a great paper even had its most vital portions been omitted. It was a momentous thing in the world's history for rebellious colonies to be able to state their grievances in so masterly a form. But if the Declaration had contained nothing but the arraignment of King George, it would, by this time, have lost force and interest, as a thing accomplished. It would have become a precedent to be referred to, but as a living inspiration it would have little value. You can think of many occasions before 1776 when there were equally just causes, championed with equal boldness and bravery; some were lost, some won, but all now relegated to the silent chambers of history.
What makes the Declaration of Independence an ever living masterpiece is its broad pronouncement as an irrefutable axiom that individual men are created equal, and that each man is born with inalienable rights, viz: life, liberty and the pursuit of happiness; for the security of which rights governments are instituted, deriving their just powers from the consent of the governed.
Until that day the world's affairs had been conducted upon exactly the opposite plan, notwithstanding all protest, and in spite of all rebellion.
All systems, from the simplest to the most complicated, subordinated the individual man, while they glorified the state. Gov. ernments were built from the top down. Class stood upon the shoulders of class; and each lower class was held to exist for the welfare of the next higher.
Liberty has always had its champions by pen, tongue and sword, but they never before agreed upon what liberty is — the right to the pursuit of happiness under the protection of governments instituted for that purpose, and having no other. This Declaration bears to human rights the same authority that the Golden Rale bears to morals. It is self-evident, irrefutable, and right in the nature of things. It is fixed over and above the shrine wherein dwells the genius of our national life, whence it challenges each and every encroachment upon individual freedom, and every attack upon the natural rights of man. In the few minutes which I have to address this body, I propose to call to mind some instances wherein, by a singular obliquity, our own people have violated this first principle of their national being, and wherein they appear to be yielding, little by little, to a tendency to disregard it.
When you start with the premise that all men are born equal, and that each man has rights the same as all others, and that government is instituted to secure these rights, no form of organized government is possible of conception but the democratic, for under no other form, owing to the frailties of human nature, will the single end of government for man be kept in view. Raise up an aristocracy of birth, wealth or intelligence, and entrust it with the guardianship of private rights, and it will soon betray the trust, seek its own ends, and aggrandize itself at the expense of the co moner people. You do not appoint curators of the affairs of persons of sound mind; if they desire agents they make their own selections, reserving the power of control and removal. So in government for the people, they must have the selection of their agents, with power of control and change, and that is representative government, which is democracy.
Those patriots who suggested that Washington be given a crown, and those others who argued for an hereditary presidency, overlooked the fact that either course was impossible without abandoning the cardinal principle underlying the organization which they had fought to effect. A misstep of that kind would have ruined all, and the progress of liberty would have been set back to its former place.
Section VIII, Article 1, of the Federal Constitution contains, in eighteen short paragraphs, every concession made to the supreme government, but five of which in any wise touch the business relations or private affairs of the people, namely, those covering bank. ruptcy, the coinage of money, post offices, patents and militia. The “general welfare” which Congress may provide for is the “general welfare of the United States.
The power to regulate commerce is confined to that with foreign nations, and among the several states, where from the nesessity of the case there would be no other means of regulation. Some express limitations upon Congress were contained in Section IX of the same article, but not being regarded as sufficient, in 1789 eight additional articles were adopted, every one of which was addressed to the preservation of private rights. And, as rounding out the whole, so as to leave no room for argument, a ninth amendment declared, “that the enumeration in the constitution of certain rights should not be construed to deny or disparage others retained by the people;” and a tenth, that powers not delegated to the United States by the constitution, nor prohibited by it to the states, were reserved to the states respectively, or “to the people.
Now, I know that it has been answered a hundred times that these prohibitions are restrictive upon Congress only; and, as enactments, that is not to be disputed. But thus, and thus early, it was manifested that the spirit of the people was against encroachment, by the government, upon the rights asserted in the Declaration of Independence. The reservation to the states was for their benefit; but the reservation to the people was distinctly and equally for theirs. It was intended that the people of the United States should be individually free, as were no other people, in their private lives and in their various business activities. They were subject, of course, and in no niggardly fashion, to the money charges which the governments instituted for their protection necessitated; and they were bound by the rule of property and conduct that no man shall use his own to the injury of another.
But they were eminent believers in the doctrine of laissez faire, and that that country is best governed which is least governed.
No administration of the common law, without legislation, would have ever changed that condition;--I mean that common law which we recognize as the fruit of reason, the dictate of justice derived from experience and applied to the circumstances in which we live. For example, a modern method of preventing the free transaction of business is the use of the strike and boy. cott, but the common law has frequently been used for redress against such combinations when they produced infractions of private rights, and it may always be confidently appealed to in like cases when statutes do not interfere.
Whatever contraction the citizen of today finds in his sphere of individual action, whatever shackles upon his movements or barriers to his advancement along his chosen pathway, he may lay to statutes and ordinances made by his representatives, and asserted against him in violation of his natural rights and sometimes in the face of express constitutional prohibition.
Little just complaint can be made of Congress in this connection, for it has generally kept well within the bounds prescribed for it. Its protective system, enacted and repealed from time to time, borders upon interference with the natural rights of citizens to buy from whom they please. But the protective system is not
Congress has express power to lay and collect duties, and may distribute them as it sees fit. The protection is merely the concealed motive which leads it to tax one thing and let another come in free, and is within its discretion.
Pennsylvania’s constitution, adopted in 1776, had this as its first declaration of right: “That all men are born equally free and independent and have certain natural, inherent and inalienable rights, among which are the enjoyment and defending of life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety.” Massachusetts copied the language in 1780, and nearly all the states have the same or an equivalent declaration.
These words were adopted, without doubt, as reservations in behalf of the individual to be operative against the states and all their constituted authorities, and as a clear statement of points upon which there should not only be no adverse interference by any branch of the state government, but on which the individual
should be entitled to the affirmative assistance of every branch, in case of attack.
But a singular state of things ensued at a very early stage of our national existence. The Legislatures, chosen from and by the people, almost immediately began a course of action which, from the earliest days to the present, has caused a continuous struggle between the individual and the state for the preservation of his reserved natural rights, and of other rights which are generally mentioned and accepted by clear constitutional language. Judg. ing by their bills and laws, Legislatures, as a rule, give to these constitutional reservations only such respect as is, or may be, enforced by the courts; and this, as we shall see, is but an unsatisfac. tory safeguard. The oppressions we feel and the condition of things which prevail is so that we now admit that the freest man is not an American but an Englishman, are due to the lamentable fact that our representatives never give us the benefit of the doubt, when doubt arises, as to the natural justice or constitutionality of a proposed law, if that law is pressed for by what seems to be the popular voice, or by the clamors of prejudice or self interest.
The most erronous assumption is growing in favor that there is a state in existence among us, which has ends and objects which are summed up in the idea that the majority alone rules, and that the good of the greatest number is always a proper and commendable rule of action. Our statutes are loaded with laws from year to year which are sumptuary, annoying and oppressive, and our tax lists are swelled with demands for money for undertakings which are foreign to any function contemplated in the fundamental idea of our government. Such money, when taken, is said to be taken by due process of law, but the process is one of form only; in truth it ought to be adjudged unlawful, because the use to which it is devoted is outside the powers for which government is instituted. I will give an instance: The state has no business to engage in business for the sake of profits. Business in all its branches belongs to the individual. There may be some limited exceptions, but they are extremely limited. If you violate the rule once you concede it lawful, and open the way to the assumption and monopoly of all business. Government never yet undertook and successfully prosecuted a business without a monopoly. The United States could