Slike strani
PDF
ePub

No evidence must be admitted which is not admitted in

other trials;

There must be a fixed punishment;

There must be no constructive treason;

And the judges must not be political bodies.

These guarantees have been elaborated by statute and common law, through periods of freedom and tyranny, by the Anglican race. The English law grants these safeguards, except indeed the last to lords, because, according to the principle that every one must be tried by his peers, a lord is tried by the house of lords. It showed great wisdom that the framers of our constitution did not assign the trial for treason to the senate,' as the former French constitution appointed the house of peers to be the court for high treason. American impeachments are tried indeed by the senate, but it will be observed that the American trial of impeachment is not a penal trial for offences, but a political institution, trying for political capacity. The senate, when sitting as a court to try impeachments, can only remove from office, whatever the crime may have been; and the impeached person can be penally tried after the senate has removed him from office. In its political character, then, but in no other point, the American impeachment resembles the Athenian ostracism, which was likewise a political, and not a penal institution. The English impeachment is a penal trial.

The trials for treason going on in many countries of the European continent, especially in Naples and the Austrian dominions, are, by way of opposite, fair illustrations of what has been stated here."

The trial for treason has been treated of in this place because naturally connected with the subject of the penal trial in general. Otherwise it would have been more properly

1 The American trials for treason are collected in Francis Wharton's State Trials of the United States; Philadelphia, 1846.

2 The reader may be acquainted with the Right Hon. Mr. Gladstone's pamphlet on Neapolitan trials for treason, published in 1851. It is but a sample.

enumerated among the guarantees connected more especially with the general government of a free country. We return, therefore, once more to the guarantees of individual rights.1

1 I would mention for the younger student, that when I study pervading institutions, or laws and principles which form running threads through the whole web of history, I find it useful to make chronological tables of their chief advancements and reverses. Such tables are very suggestive, and strikingly show what we owe to the continuity of human society. None of these tables has been more instructive to me than that on the history of the law of treason.

CHAPTER IX.

COMMUNION. LOCOMOTION, EMIGRATION.

6. THE freedom of communion is one of the most precious and necessary rights of the individual, and one of the indispensable elements of all advancing humanity-so much so, indeed, that it is one of those elements of liberty, which would have never been singled out, had not experience shown that it forms invariably one of the first objects of attack, when arbitrary power wishes to establish itself, and one of the first objects of conquest, when an unfree people declares itself free.

I have dwelt on the primordial right of communion in the Political Ethics at great length, and endeavored to show that the question is not whether free communion or a fettered press be conducive to more good, but that everything in the individual and in nations depends in a great measure upon communion, and that free communion is a pre-existing condition. The only question is, how to select the best government with it, and how best to shield it, unless, indeed, we were speaking of tribes in a state of tutelage, ruled over by some highly advanced nation.

In this place we only enumerate freedom of communion as one of the primary elements of civil liberty. It is an element of all civil liberty. No one can imagine himself free if his communion with his fellows is interrupted or submitted to surveillance; but it is the Anglican race which first established it on a large scale, broadly and nationally acknowledged.1

Free nations demand and guarantee free communion of speech, the right of assembling and publicly speaking, for it is communion of speech in this form which is peculiarly exposed

1 The first fair play was given to a free press in the Netherlands.

to abridgment or suppression by the public power; they guarantee the liberty of the press, and, lastly, the sacredness of epistolary communion.

It is a very striking fact that, although the Constitution of the United States distinctly declares that the government of the United States shall only have the power and authority positively granted in that instrument, so that, in a certain respect, it was unnecessary to say what the government should not have the right to do, still, in the very first article of the Additions and Amendments of the Constitution, congress is forbidden to make any "law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

The reader will keep in mind that the framers of our constitution went out of their way and preferred to appear inconsistent, rather than omit the enumeration of those important liberties, that of conscience, as it is generally called, that of communion, and of petitioning; and the reader will remember, moreover, that these rights were added as amendments. They must then have appeared very important to those who made our constitution, both on account of their intrinsic importance, and because so often attacked by the power-holders. Let the reader also remember that, if it be thus important to abridge the power of government to interfere with free communion, it is at least equally important that no person or number of men interfere, in any manner, with this sacred right. Oppression does not come from government or official bodies alone. The worst oppression is of a social character, or by a multitude.

The English have established the right of communion, as so many other precious rights by common law, by decisions, by struggles, by revolution. All the guarantee they have for the unstinted enjoyment of the right lies in the fact that the whole nation says with one accord, as it were: to take it away.

Let them try

It is the same with our epistolary communion. The right

of freely corresponding is unquestionably one of the dearest as well as most necessary of civilized man; yet, our forefathers were so little acquainted with a police government, that no one thought of enumerating the sacredness of letters along with the freedom of speech and the liberty of the press. The liberty of correspondence stands between the two; free word, free letter, free print. The framers did not think of it, as the first law-makers of Rome are said to have omitted the punishment of parricide.

The sacredness of the letter appears the more important when it is considered that in almost all civilized countries the government is the carrier of letters and actually forbids any individual to carry sealed letters.1 So soon as the letter, therefore, is dropped into the box, where, as it has just been stated, the government itself obliges the correspondent to deposit it, it is exclusively entrusted to the good faith and honorable dealing of government. If spies, informers, and mouchards are odious to every freeman and gentleman, the prying into letters, carried on in France and other countries, with bureaucratic system, is tenfold so, for it strikes humanity in one of its vital points, and had the mail acquired as great an importance in the seventeenth century as in ours, as an agent of civilization, and had Charles I. threatened this agent as he invaded the right of personal liberty, the Petition of Right would have mentioned the sacredness of letters as surely, as it pointed out the billeting of soldiers, as one of the four great grievances of which the English would be freed, before they would grant any supplies to the government.2

1 The law of the United States prohibits any private person periodically and regularly to carry letters, and also to carry letters in mail ships. 2 The American states in which slavery exists, have not considered the laws or principles relating to letters to apply to public journals, when suspicion exists that they contain articles hostile to slavery. In some cases people have broken into the post-office and seized the obnoxious papers; in other cases the state legislature have decreed punishments for propagating abolition papers. Thus we read in the National Intelligencer, Washington, October 6, 1853. that "Mr. Herndon, postmaster at Glenville, informs the editor of the Religious Telescope, at Circleville, Ohio,

« PrejšnjaNaprej »