Slike strani
PDF
ePub
[ocr errors]

passage referring to the subject of "natural courts." It enumerates, as one of the grounds of justification for separating from England, that the government has 'transported us beyond the seas to be tried for pretended offences."

[ocr errors]

All continental governments which were bent on defeating the action of the new constitutions, even while they existed, resorted to declaring large cities and entire districts in "a state of siege," thus subjecting them to martial law. All absolute governments, whether monarchical or democratic, have ever found the regular course of justice inconvenient, and made war upon the organic action of the law, which proves its necessity as a guarantee of liberty.

It is obvious that, whatever wise provisions a constitution may contain, nothing is gained if the power of declaring martial law be left in the hands of the executive; for declaring martial law, or proclaiming a place or district in a state of siege, simply means the suspension of the due course of law, of the right of habeas corpus, of the common law, and of the action of courts. The military commander places the prisoners whom he chooses to withdraw from the courts before courts-martial. There were a number of French departments in "a state of siege" before the coup-d'état. After it, all France may be said to have been so.

In England, when there is a rebellion or wide-spread disorder, threatening life and property, a regular act of parliament is passed suspending the habeas corpus. The act states the necessity or reasons, and the time of its duration. This last point is of great importance.16

16 The act by which martial law was declared in Ireland, during the rebellion in 1798, can be seen in Tytler's Essay on Military Law, Appendix,' No. 6. I copy this reference from an article, Martial Law, in Political Dictionary. London, 1846,

We have seen already under what circumstances our constitution permits the suspension of the habeas corpus ; and that this cannot be done by the president alone, but by Congress only, need hardly be mentioned.

It has been necessary to mention here the supremacy of the law as a peculiar guarantee of personal liberty. We shall return to the subject, and consider it in its wider relations.

11. The preceding guarantee of the supremacy of the law leads to a principle, which, so far as I know, it has never been attempted to transplant from the soil inhabited by Anglican people, and which nevertheless has been, in our system of liberty, the natural production of a thorough government of law, as contradistinguished to a government of functionaries. It is so natural to the Anglican tribe that few think of it as essentially important to civil liberty, and it is of such vital importance that none who have studied the acts of government elsewhere, can help recognising it as an indispensable element of civil liberty.

It is simply this, that, on the one hand, every officer, however high or low, remains personally answerable to the affected person for the legality of the act he executes, no matter whether his lawful superior has ordered it or not, and, even, whether the executive officer had it in his power to judge of the legality of the act he is ordered to do or not; and that, on the other hand, every individual is authorized to resist an unlawful act, whether executed by an otherwise lawfully appointed officer or not. The resistance is made at the resister's peril. In all other countries, obedience to the officer is demanded in all cases, and redress can only take place after previous obedience." Occasionally, this principle acts harshly upon the officer;

17 Extreme cases, as a matter of course, would be allowed to form exceptions.

but we prefer this inconvenience to the inroad which its abandonment would make in the government of law. We will not submit to individual men, but only to men who are, and when they are, the organs of the law.18 A coup-d'étât, such as we have lately seen in France, would not be feasible in a nation accustomed to this principle. All the answer which the police officers gave to men like General Cavaignac, who asked them whether they were aware that they committed a high crime in arresting a representative of the people, was, that they had orders from their superior, and had nothing to do with the question of legality.

Take as an instance of the opposite to the French principle of that huge institution called gensd'armerie, the following simple case :-

A sheriff, provided with the proper warrant, has the right, after request and denial, to open the house door— forcibly to open it, if a third party has taken refuge in it, or sent his goods there. "Every man's house is his castle," will not protect any one but the bonâ fide dweller in it. Nevertheless the sheriff, provided with his legal warrant, does it at his own peril; for if he break open the house, however well his suspicion may be grounded, and neither the party nor the goods sought for be there, the sheriff is a trespasser, and as such answerable to the inhabitant of the house before the courts of the land. This may be inconvenient in single cases. It may be that the maxim which has been quoted has "been carried as far as the true principles of political practice will warrant-perhaps beyond what, in the scale of sound reason and good policy, they will warrant.' I doubt it, whatever the inconvenience in single cases may be. All

19

18 I must again refer to the Political Ethics, chapter on Obedience to the Law.

19 Sir M. Foster, Discourse of Homicide, p. 319. I quote from Broom's Legal Maxims.

law is inconvenient in some cases; but even if this opinion were founded, how august, on the other hand, appears the law-I do not mean a single statute, but the whole self-evolving system of a common law of the land -that errs on the side of individual liberty against the public power and the united weight of government

The reader has seen from the passage on warrants, which I gave in a preceding part of this work, how far this principle is carried in the case of resisting an officer, even to the killing him, if his warrant be not wholly correct. Another proof of the uniform acknowledgment of this principle and essential pillar of civil liberty, is this, that when a British minister obtains an act of indemnity, which is an act of impunity for certain illegal acts, which, nevertheless, necessity demanded, the act of indemnity is never for him alone, but it expresses that the act shall also cover what the inferior officers have done by the direction of the minister in the premises.20

In conclusion, I would remark that it is wholly indifferent who gives the order. If it be illegal, the person who executes it remains responsible for the act, although the president or the king should have ordered it, or the offending person should be a soldier obeying his commander. It is a stern law, but it is a sacred principle, and it has worked well.

20 For instance, in the scarcity of grain, in the year 1766, Chatham prohibited exportation of grain. When parliament met, he read a passage from Locke to show that what he had done was not legal, yet right. Indemnity was passed for him and those who had acted under him. In 1818, ministers asked and obtained indemnity for the suspension of habeas corpus, for themselves and magistrates under them. Many other instances might be given. See Lieber's Legal and Political Hermeneutics, note to page 79. Acts of indemnity cannot be passed with us, because we have a constitution of which the legislature itself is but the creature, and we cannot pass ex post facto laws. All that remains for us to do in cases of absolute necessity, or transcendent utility, is to pass over the occurrence in silence; or Congress may show its concurrence by aiding in the act. This was the case when Mr. Jefferson purchased the mouth of the Mississippi, i.e. the territory of Louisiana,

CHAPTER XI.

QUARTERING SOLDIERS. THE ARMY.

12. GOVERNMENTS, if not very closely hedged in, have it in their power to worry citizens into submission by many indirect methods. One of these, frequently resorted to since the introduction of standing armies, is that soldiers are billeted with the disaffected citizens. An insolent soldiery, supported by the executive, find a thousand ways of annoying, insulting, and ruining the family with whom they are quartered. It has been deemed necessary, therefore, specially to prohibit the quartering of soldiers with citizens, as an important guarantee of civil liberty. The English bill of rights, "declaring the rights and liberties of the subject," in 1688, enumerates in the preamble, as one of the proofs that James the Second "did endeavour to subvert and extirpate" "the laws and liberties of this kingdom," his “raising and keeping a standing army within the kingdom in time of peace, without consent of parliament, and quartering soldiers contrary to law." It is in England, therefore, a high offence to quarter soldiers without consent of parliament; and the constitution of the United States ordains that "no soldier shall in time of peace be quartered in any house without the consent of the owner, nor in time of war, but in a manner to be prescribed by law." The framers of the constitution, it will be observed, were very exact in drawing up this paragraph.

« PrejšnjaNaprej »