Liberty and law; or, Outlines of a new system for the organization and administration of federative government

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INTRODUCTION TO THE FIRST EDITION. Vll

cation, exteudiug to every function of tlie mind and body, to protect tlie intellectual culture of its citizens against the evil influences of ignorance and superstition in all forms, and against pauperism, by providing each one with the means of making a livelihood; and, third, a complete system of intercommunication between men, whereby to take from out of the despotic influence of money, and all other monopolies, the teriible power wiiich they so long have wielded to oppress the people, and to exercise that power, through a State organization and federation, for the benefit, not for the injuiy, of the people.

In this work I purpose to develop the application of those fundamental principles as requiring, for the purpose of securing to all men immunity from the unlawful interference of others, first, a code of laws and a constitution for each State ; second, a political constitution for the federative republic of all the States ; and, third, an international constitution for all the States of the world, as they may gradually, and one after another, see the wisdom of adopting such a legal international form of government, if it be practicable, as I believe it to be.

While the code of laws will point out the civil and criminal legislation needed, the constitution will be shown to demand a synthetical form, wherein alone the double requirement of all government — (1) that it should have absolute power to carry out all its purposes and laws for the good and happiness of all, and (2) that it should be absolutely checked in the exercise of that povk'er whenever attempted to be wielded in an unjust and improper way — can (3) be united in its character of a federative republic. This triune characteristic, entering all the functions of the State organization, will necessarily also be applied to them, separating the whole organization primarily into legislative, judicial, and executive departments.

Thus, each person may become the architect of Ms own fortunes, under the wise universal protection and aid of a government of law, having one common object : the permanent good and happiness of each citizen ; and the people may come to regard the State as a friend, and the rule of law as the only safeguard for the preservation of liberty under the forms of representative federative systems of government.

In the organization of the judicial department of the Federal republic^ I propose to prevent future wars between the States, and restore all the States to a just and equal sovereignty under the law, by organizing as a permanent safeguard an interstate national judicial tribunal, whose functions shall be to determine all controversies between the federative States, between one or more States and the Federal government, and betAveen the citizens of any State and Federal or State governments ; in which court any State or the Federal government may be sued, and suffer judgment by due course of law or equity.

Two other Federal judicial tribunals, of separate, distinct jurisdictions over all other causes and proceedings provided for iu the code of the Federative government, should be organized, with an appeal in important causes to the Supreme Interstate National Court.

I shall, finally, recommend the organization, by the consent of several or all

VIU INTRODUCTION TO THE FIRST EDITION.

■of the civilized nations of tlie world, of an international judicial tribunal for the legal settlement of all controversies between States, nations, kingdoms, and empires; providing for the selection of a judicial officer from each nation that enters this international federation, and to form a court to settle all disputes and controversies between nations; to render judgment on trial Ibefore this international court; and to regulate and adjust all cases of conti'oversies between the same parties in the interchange of moneyed values, and the settlement of balances between all parts of the said intei'national federation, by the organization of an international clearing-house under the jurisdiction and control of such court.

Thus, from the lowest function of government, — to provide for the direct security and sanitary welfare of each citizen, — my work will trace its duties to the highest in the creation of an international court, which may remove all just causes of war between the federated nations, and realize the common wish of all good men by the maintenance of universal peace.

In this age, Avhen the forces of heat and electricity, manifested in the telegraph and the steam-power, have brought the people of the world into such near contact and communication with each other that the welfare of each individual is more intimately connected with that of his fellow-men than ever Ibefore; when even the locked-up civilization of Japan opens itself to the influence of our own, and seeks to establish our own imperfect systems of law, of education, and of money of divers kinds: it is clearly our duty to raise our energies to a level with the spirit of the age, and discover, if we can, a truly universal system of federative government, under wise, equal, just, harmonious, and all-embracing laws, that shall be applicable to all races, nations, castes, and men, that may be subjected to its influence, and which may effectually secure to one and all, for all time to come, the greatest good, happiness, morality, wisdom, and perfection that humanity is capable of attaining.

PKEFACE TO THE SECOND EDITIO]^^.

It is now seven years since the First Edition of " Liberty and Law under Federative Government " was published ; and so generous lias been its reception by the public, as evidenced by numerous changes in our governmental policy since its publication, — changes which I had therein suggested as reforms required for the puriiication and perpetuation of our republican iorm of government, — that I have been encouraged to give to the public a Second Edition, greatly enlarged, and more fully carrying out the purpose , which I had in view when I first undertook the work.

It must noAV have become far more clearly and generally manifest than it -was even seven years ago, that the entire organization of our legislative, executive, and judicial departments of government must be radically remodelled and i-eformed, if we would save for ourselves and our posterity the rights and liberties which our forefathei's sought to secure for us, but which unchecked corruption in every branch of the State and Federal governments, rapacious corporations, fostering and fostered by that corruption, have already swallowed up in great part, and now threaten to devour altogether.

Our Federal Constitution was adopted, and, indeed, our whole form of government was organized for the purpose of securing to each citizen life, liberty, property, and equality of rights, through a representative republic. The people were no longer to be plundered, down-trodden, and enslaved for the benefit of a king and a few nobles ; but were to govern themselves, by themselves, and for themselves.

This object, it must be confessed, has been realized beyond the most sanguine expectation, and to tlie astonishment especially of the outside world, -which had prophesied that a republic was a chimera, — that only kings, or at the best, an aristocracy, could govern the masses of mankind, and that those masses could never lie brought to govern themselves.

But a new form of despotism has arisen since the beginning of this century, a despotism of which the founders of our government had not, and could not have had any adequate conception, and against which they therefore did not make any provision. This is the despotism of chartered corporations and other forms of money-monopolies, by which the people have since been as insidiously plundered as they were publicly plundered in former times by the claimants of God-given and hereditary prerogatives. And here I may as well revert to the legal power claimed by corporations. It is held, and perhaps justly held, that a " State " granting a perpetual charter to a corpo-

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ration cannot repeal that charter unless some misuser or default has been made by the corporation. The ground taken is, that the United States Constitution forbids any State from passing new laws invalidating contracts; and that a charter granted by a State is in the nature of a contract, and therefore cannot be repealed under the provision of the Federal Constitution. Now, leaving the latter assertion undisputed, — since I cannot well argue the constitutional issue here, — it is very clear, that a charter granted by Congress is repealable by Congress, and is not a contract within the meaning of the Federal Constitution. Congress has quite as much right to annul the charters granted to the Pacific Railroad Companies as the British Parliament has to extinguish any public corporation to which it has given legal existence. The application of this principle will appear more clearly in the Second Part of this work, where I speak of public highways. I may mention here, however, that even a State of a federative republic cannot be barred by any legislative enactment which would deprive it of the power to annul perpetual charters. The legislature of a State, which is elected every one, or two, or four years comes to have the power to make all the people who elected them, slaves of any one or more corporations, simply by means of a charter granted in perpetuity.

The greater part of this work deals with the problem how effectually to eradicate this evil and provide against its reappearance, restoring to the people their lost rights and liberties, and, so far as possible, their stolen property. These objects can be attained only, as I shall show, by a radical reconstruction of the whole government, — State, Federal, and municipal ; and since our present State and National Constitutions have not, as we have seen, provided against this new form of a money and corporation despotism, the first essential step to be taken is to call a general national convention for the purpose of framing a new Federal Constitution, that shall effectively terminate all existing Federal monopolies aiid prevent for the future the growth of similar polypi, and kill off the possibility of that political corruption which was prolific enough to engender these monsters and provide them with the food which has swelled them to their present enormous dimensions ; their blood-sucking arms stretching in every ^direction from the shores of the Atlantic to those of the Pacific Ocean, and from Alaska to the Rio Grande del Norte.

So far as this new Federal Constitution will necessitate changes in the form of our government, that subject is discussed in those chapters of the First Part of this work that bear the keading, " General Principles of a Federative Government." Those changes involve the following main points: —

1. A thorough reconstruction of the legislative department, extending its powers vastly in many respects, so as to enable the government to repossess itself of the usurped powers of corporations and monopolies, and manage them in the future for the benefit of the people ; but, on the other hand, so tying its hands by constitutional limitations and provisions of criminal prosecution for official malfeasance, that this most disgraceful feature of American politics may be forever wiped out from the future pages of our history. This should

Preface To The Second Edition. XI

include a constitutional provision confining each session to a specified tei'm, — say two or three months, — so that the real business of the session may not be left to drag over until the very last days of the term ; and, for the same reason, each committee to v^rhich a bill is referred should be constitutionally required to definitely report within at least fourteen days.

2. A thorough change in the organization of our judiciary, which shall effectually check that tendency towaixls judicial despotism and corruption which of late years has assumed formidable dimensions, and, if allowed to develop itself, will of itself put an end to our free institutions, however pure the other departments may be.

3. A subdivision of our general Federal Union into five parts, each such part embracing a certain number of States, or organized on the same principle as our general Federal Union, —i.e., with a separate congress, judiciary, and executive.

a. The five congresses of these five sub-Unions to meet, after the close of their respective sessions, in one general congress, forming the legislative department of the whole Federal Union.

b. Tlie five executives to choose from their midst, at each such general congressional session, a presiding oflicer, who shall then be president of the whole Fedei'al Union for the ensuing j-ear ; but his power of appointment to be limited to diplomatic and consular offices. All other Federal oflicials to be elected.

c. The five judiciaries of the five sub-Unions to constitute, as will be explained hereafter, an Interstate National Court, which will relieve the present United States Supreme Coui't of a large share of its labors. That present Supreme Court, however, to remain, with its collateral branches, substantially as at present.

4. A general codification of laws ; whicli involves, of course, the abolition of the common law in the whole Federal Union and each of the separate States.

So far as the new Federal Constitution will necessitate changes in the nature of our governmental institutions, that subject is discussed in those chapters of the First Part that are headed " Public Hygiene " and " Public Education," and those chapters of the Second Part that are classified under the general heading, "Public Intercommunication."

Of course, my book has not been without its share of adverse criticism ; mainly, I suppose, because it did- not confine itself to the representation of any single grievance under wliicli the people suffer, but gave expression to a great number of them, — those that were most prominent, — in a systematic form. This led persons Avho, perhaps, suffered specially from one kind of injustice or governmental neglect to applaud heartily those particular parts of my book which exposed their own grievances, and at the same time to look with disfavor upon other parts, in which they were not immediately Interested, or to which their interests were adverse.

XU PEEFACE TO THE SECOND EDITION

I shall now proceed to enumei'ate and controvert the chief objections of fair-minded writers, that have come to my notice.

These objections maybe classified under two general heads: First, objections to the fundamental principles of the work; second, objections to the special forms proposed in it.

In this preface to the second edition I shall confine myself to controverting the first class of objections, as a reply to the second class will occur in the course of the work, in their separate order.

The chief objection raised against the fundamental principles of my book is, that I advocate in it the establishment of a "paternal government," — a form of government altogether at variance with our existing republican institutions and traditions. It is said that my proposed reforms would involve too much government, and various ancient maxims are quoted to the effect that "the least government is the best," etc.

Now, I might readily grant the correctness of the principle in the abstract, though I hold it to be a very faulty definition of a best government, and might yet contend that in its practical application it is subject to constant modification by existing circumstances. The real meaning of that principle is, indeed, simply this : that government is an institution, or contrivance, or agency whereby to secure to each individual member of a Commonwealth the utmost possible freedom compatible with the freedom of all other individual members of the same Commonwealth, without ever transgressing, or being able to transgress that, its only and exclusive prerogative.

That the least government cannot realize this object has been, I think, conclusively established by me in this work. It may answer for a savage tribe ; not for civilized communities. There is, no doubt, in every upgrowing community a time when it is of paramount necessity to confine governmental functions within the narrowest possible limits; but as civilization progresses, population increases, and the great modern features of society, commerce and industry, are developed, the regulating power of that society — the government — must correspondingly outstep its original limits. Circumstances of time, space, and number come here to exercise their influence and demand practical consideration. Even as the amount of money requisite for the circulation of a country is determined not only by the number of its inhabitants, and the necessities of their business enterprises, but also by the extent of its territory and the distribution of its population over that territory, so the requisite legislation and constitutional limitations for a nation depend to a great extent upon the size of the districts wherein the people are congregated. A form of government Avhich may be perfectly adequate to secure the purpose of its organization — that is, the protection of the rights of each individual — for a sparsely distributed community may, nay, is most likely to be, very insufiicient for an extensive and densely populated State ; and the least government requisite for the administration of a large city may, on the other hand, be an extremely cumbersome, useless, and tyrannical piece of machinery for the administration of justice in a ncAvly settled territory. Thus, a system of government that may be altogether too loose and inadequate for a city

PREFACE TO THE SECOND EDITIOiSf. XUl

like New York, may be an intolerable interference with individual freedom if applied to a State like Colorado, or to Territories like Nevada, Dakota, and Montana. The citj* of New York very properly arrests the man who lies down to sleep on its public walks, and takes him to a lodging at the policestation ; the State of Colorado would commit an act of insufferable injustice were it to arrest and incarcerate the tramp who laid down to rest on the side of one of its public highways. Still, there is no qualitative distinction in the offence in either case. But that which constitutes the act an offence in the first case, and makes it perfectly innocent in the other case, is simply the quantitative distinction between a constantly thronged public street and a, rarely frequented public road. This distinction, indeed, constitutes the ground of all our so-called police-laws and the innumerable regulations promulgated by the authorities of our larger cities ; regulations which, while they seem to interfere with individual rights, abstractly considered, are indispensable for securing them practically. I need refer only to the I'aid upon gambling-houses and violent seizure of their keepers' property, or the arrest of suspicious characters and vagrants without any charge having been brought against them. Theoretically, there is no reason why I should not build my house in all I'espects to suit myself; and if I build in the country, no law will be likely to interfere with my doing so. But in a large city the law does interfere, on grounds of public safety as well as public health. An innocent act becomes thus, by mere change of locality, a criminal offence.

In short, to cany out the principle, that the least government is the best government, logically, would thi'ow our whole present system of government back into primitive lawlessness and barbarism. There would be no police courts, no public highways, no public schools, public asylums, public sewers, public parks, etc., for none of these classes of institutions are directly necessary to secure the rights of each individual. But since those critics who charge my proposed scheme of government as being too paternal in its character, deny the necessity of those institutions in at least the more crowded sections of the United States, for the purpose of securing those rights, why will they not accept the logical consequences, and advocate with me the establishment by government of all such other institutions as our advanced civilization and increased population may render necessarj^ for the attainment of the same purpose? If it is within the scope of the proper functions of a, government to establish public sewers at public expense in order to preserve life and health, why not to establish a system of public parks, forestry,^ ■public railways, public telegraphs, river improvements, and the like? If it is granted that it is the duty of governments to erect and maintain as.ylums for the poor, the crippled, the deaf and dumb, the blind, and the insane, without regard to their religion, and that all citizens should be taxed alike for their support, on what ground do certain sects insist that government has not the right to tax all citizens equally for the support of public schools for the general education of all? And if it is conceded that the police have the right without warrant to arrest suspicious parties under certain circumstances, why should not the right be extended to them to require of each unknown per-

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son to exhibit his credentials as a reputable citizen or traveller, in the nature of a passport, annexed to his photograph? We have already so far advanced on these principles of a representative government as advocated by me, that we have a fully organized weather signal-service, supported by public taxation, on the sole ground that it works for the general welfare. But if it is of general benefit to be furnished by the government with daily weatherbulletins, is it not still more necessary to furnish the p^eople Avith a daily National and State newspaper, giving reliable authoritative accounts of all governmental transactions? We have in a tolerably complete state a system of coast-surveys and improvements (light-houses, harbor-dredging, etc.) ; is there any ground why our grand rivers should not enjoy a similar system of improvements, by jetties, dams, and dredging? Of course there must be lines by which to limit this administrative power of a government, if I may so call it, in distinction from the purely legislative power, — lines which separate a national republican form of government from a "paternal" despotism, that has no limitation at all, but is purely arbitrary. But I thought that I had been careful enough to emphasize my recognition of these limitations in every part of my work.

Trained as a lawyer from my youth, I certainly am little inclined to advocate "paternal" arbitrariness in a form of government as a substitute for a system of strict law ; but neither do I feel disposed to see our government drift into a state of anarchy and lawlessness from sheer fear that some one's imaginary individual rights may be molested. The age wherein we live is not the age of the past ; and in the United States, above all other coxintries of the world, the most stupendous changes in the social life of the people have taken and are continually taking place. But these changes require new governmental machinery ; and the sooner we recognize the fact and apply such machinery the better. All other machinery, the product of our modern life, has been improved by American inventive genius; why should its political machinery alone remain at a stand-still.

" Liberty and LaAv " is the title of my book. The fullest possible freedom for each individual ; but also the fullest necessary constitutional limitations to secure the rights of all other individuals against the despotism of class legislation and corporations. Hence the synthesis also of right and duty. No one can claim a right for himself without confessing duties to all his fellow-citizens, aud only by assuming those duties can his rights be protected. It is "paternal" despotism, for instance, to take men from their homes, compel them to learn the art of war, as it is called, and then force them to exercise that art by killing brother men in battle ; for this compulsion abrogates individual freedom altogether, and reduces the rational individual to a mere piece of machinery. But it is a very proper exercise of governmental functions to save and preserve human life as readily as to destroy it, to compel men to observe the rules of a proper system of sanitary legislation, however dictatorial it may appear, since that places his individual caprice within bounds, and is necessai-y for his own protection as well as that of his fellow-citizens. Even nations recognize the legality of such compulsory sanitary

PKEFACE TO THE SECOND EDITION. XV

legislation, and hence do not hesitate to enforce against each other — in case of epidemics, for instance — rules to prevent the spread of diseases. Even the diseases of vegetables — potatoes and vines, for instance — and of cattle are thus looked upon by nations as proper subjects of international legislation; and no nation pretends to say that such legislation is an illegal or improper interference with free commerce, or the right of travel. When the "black death" leaves its Asiatic home for a westward expedition, and Russia and Austria draw up military cordons along their frontiers to arrest its progress, none of the other nations of Europe protest against such sanitary measures as involving an interference with their rights ; and even the refusal of 'several European countries to admit American hams, when the trichina mania prevailed, did not cause a remonstrance on the part of the United States.

In the early days of our republic, w^hen the condition of the country at large was such as to require little general legislation, we And the attention of the great statesmen of those times directed chiefly to the problem, how to limit the powers of the general government to the least practicable extent. This, at the time, was quite proper; and no one can desire more sincerely than I do, that the fundamental principles of the republican government established hj the wise statesmen who founded our republic, and greater than whom never since made appearance in our historj , should forever be cherished in the hearts of the American people. But at the same time I hold that those fundamental principles, when logically carried out, and applied to such an extensive and intricate governmental machinery as ours has grown up to be since the days of those statesmen, require, of necessity, the reforms that I have pointed out.

In truth, I might go further and say, that many of these reforms were naturally considered by them;, and left untouched simply because they were convinced, and justly so, that the time had not yet come to carry them out in practice, and that their descendants would engraft them upon the future Amei'ican legislation and constitutions.

Let me cite an instance : One of the most important features of "Liberty and Law" is the proposition to inaugurate an entirely new money-system for the United States, by the establishment of an absolute legal-tender money for the whole nation. Now, this very same proposition was advanced at a very early day of our existence as a united republic by such statesmen as Thomas Jefferson, Benjamin Eranklin, and later by John C. Calhoun, and many others. Thus, Benjamin Eranklin is very explicit on this point, saying that "gold and silver are not intrinsically worth as much even as iron and lead."

Thomas Jefferson, the most enlightened of our American statesmen, says this : " Treasurj^-bills, bottomed on taxes, bearing or not bearing interest, as may be found necessary, thrown into circulation, will take the place of so much gold and silver. Bank paper must be suppressed, and the circulation restored to the nation, to whom it belongs.^'

It would be impossible to condense my px-oposed scheme of flnance for the United States in fewer words than these of the most illustrious founders of our government.

XVI PREFACE TO THE SECOND EDITION.

Were it necessary to refer to the very words and sentences used by the profoundest explorer of the deficiencies of our form of government, as fixed under tlie Constitution of the United States,— John C. Calhoun,— let me quote from one of his speeches on the currency question of 1832 these sentences : " It appears to me, bestowing the best reflection I can give the subject, that no convertible paper — that is, no paper whose credit rests on the promise to pay — is suitable for a currency. It is the form of credit proper in private transactions, between man and man, but not for a standard of value, to perform the changes generally which constitutes the approximate function of money or curfency. No one can doubt but that the government credit is better than that of any bank, — more stable and more safe. Bank paper is cheap to those who make it, but dear, very dear, to those who use it. On the other hand, credit of the government, while it would greatly facilitate its financial operations, would cost nothing, or next to nothing, both to it and the people, and would, of course, add nothing to the cost of production, which would give every branch of our industries, agriculture and manufactures, as far as its circulation might extend, great advantages, both at home and abroad ; and I now undertake to affirm, and without the least fear that I can be answered, that a paper issued by government, with the simple promise to receive it for all its dues, would, to the extent it could circulate, form a perfect paper circulation, which could not be abused by the government; that it would be as uniform in value as the metals themselves ; and I shall be able to prove that it is within the Constitution and powers of Congress to use such a paper in the management of its finances, according to the most rigid rule of construing the Constitution."

Now, it is true, that this financial question, the question of money, was the question paramount in the minds of the founders of this government ; but it is also clear to any one who reads the pages of the Federalist, that nearly all the other problems alluded to by me in this work engaged their attention. Thus, Jefferson, who was all in all the greatest American statesman, — though George Washington will ever and deservedly rank higher in the luinds of the people of the whole world as the most disinterestedly good, unselfish man that the world has ever seen, — called early attention to the defects of our judiciary system. So did Patrick Henry to the deticiences in our Federal Bill of Rights.