CHAPTER I

CITIZEN OR SUBJECT?

BY

FRANCIS X. HENNESSY

OF THE NEW YORK BAR

[Illustration]

“... _that this nation, under God, shall have a new

birth of freedom; and that government of the people,

by the people, for the people, shall not perish from

the earth._”

NEW YORK

E. P. DUTTON & COMPANY

681 FIFTH AVENUE

Copyright, 1923

By E. P. Dutton & Company

_All Rights Reserved_

PRINTED IN THE UNITED

STATES OF AMERICA

AUTHOR’S NOTE

Quotations from the Constitution of the United States are from the

“Literal Print,” Government Printing Office, Washington, D. C., 1920.

The abbreviation “Ell. Deb.” refers to Elliot’s Debates, 2nd Edition, 5

vols., J. B. Lippincott & Co., Philadelphia, 1866.

The “Federalist” is quoted from the Lodge Edition, G. P. Putnam’s Sons,

New York, 1894.

Wherever italics or capitals are used in a quotation and not directly

stated to be those of the original author, they are the italics and

capitals of the present writer.

Where the present writer interpolates his own words in a quotation,

they are included in square brackets.

PREFACE

Many Americans are interested in the Eighteenth Amendment. Millions are

interested in the American citizen.

It seems not to be known that the existence of one flatly denies the

existence of the other. This is not theory. It is plain statement of a

very simple fact. If there is an American citizen, the Amendment never

entered the Constitution. On the contrary, if the Amendment is in the

Constitution, there never has been an America or an American citizen.

Throughout this book the nation of free men is called “America.” This

is done to distinguish the nation from the federation of states already

existing and known as the United States, when the whole American people

created the nation and continued the federation as a subordinate part

of one system of government. The federation of states was proposed in

1777 and had complete existence in 1781. The nation of men was created

in 1788.

On January 14, 1922, there was opened at Williamsburg, Virginia, the

Marshall-Wythe School of Government and Citizenship. Judge Alton B.

Parker, former Chief Justice of the New York Court of Appeals and

a former candidate for President, delivered the opening address on

“American Constitutional Government.” His eloquent address has since

been made a public document and printed in the _Congressional Record_.

In it, he warned us of the danger to America from those who do not

understand our form of government and are coming here to destroy it.

“As people of this class have been coming to us in large numbers

from nearly every quarter of the globe, we must take up the task of

so educating all classes of our vast population, as that they shall

fully understand the importance of maintaining, in its integrity, our

constitutional plan of government. They should be taught in the first

instance, why it was that the people, in the formative period of our

government, were bound to have, and did at last secure, a government

which the people could control despite their legislatures, whether

representing the states or the federal government.”

The existence of the Eighteenth Amendment is based on the sheer

assumption that we have not a government of that kind. By all who

have discussed the Amendment, whether for or against it, one false

assumption has been made. From that false assumption of all, the

advocates of the Amendment have drawn their conclusion. On the

conclusion is based the existence of the Amendment. The conclusion

itself is the direct negation of the simplest and most important fact

in America. Moreover, the conclusion itself means that the Americans,

twelve years after they “did at last secure” the kind of government

they “were bound to have” and of which Judge Parker spoke, voluntarily

created a “government” of the opposite kind and made themselves its

absolute “subjects.”

And the conclusion is correct, if the premise, which is the false

assumption of all, be true.

Of course, the assumption is absolutely untrue. But no one has seen its

simple and patent untruth. Wherefore, the first step in our education

is for us to acquire knowledge of the plain fact that it is untrue.

Because our leaders do not know the fact, we must go to other teachers.

By the common false assumption, the early Americans--who “did at

last secure” the kind of government they “were bound to have”--are

now charged with having committed the most monumental blunder in all

history, a blunder which destroyed their entire achievement.

Rest assured! They did not commit that blunder. They themselves make

that clear herein. In so doing, they teach us what, with Judge Parker,

we agree that we all must know, if America and the American citizen

are to remain. They are the best teachers in the world. They know what

they teach because they did it. They do not weary or perplex us with

theories or principles. Their teaching is the telling of simple facts.

Best of all, they tell us in their own simple words, while they are

talking to one another and engaged in the very accomplishment of the

facts they teach.

It is a mere incident of their teaching that they settle the plain fact

that the supposed Eighteenth Amendment is not in the Constitution.

It is our own candid belief that very few Americans will be found to

prefer the existence of the Amendment to the existence of America

itself. The early Americans make amazingly clear that there is no

America and no American citizen if the Amendment is in the Constitution.

The nation of men, which we call America, and the subordinate

federation of states, which we call the United States, are bound

together in one dual system. They have a common name, “The United

States of America.” They have a common Constitution, with national

Articles for the men and federal Articles for the states. They have a

common government, national for the men and federal for the states.

This is exactly the America of which Judge Parker spoke. We want to

keep it. The early Americans, who made it, will enable us to keep

it, if we listen to their teaching of the simple facts which they

accomplished. Such a result would be some credit to the supposed

Eighteenth Amendment. Even those most opposed to it would be compelled

to acknowledge that its brief imaginary existence awoke us all to our

first real concept of what America, the nation of free men, really is.

FRANCIS X. HENNESSY.

_342 Madison Avenue, New York City. March 17th, 1923._

CONTENTS

I. SUBJECTS BECOME CITIZENS _Page 1_

The American must know what a citizen is--Otherwise he will not

remain a citizen--If the American citizen exists, there is no

Eighteenth Amendment--Americans of 1776 knew distinction between

“citizen” and “subject”--While legally “subjects,” they had

governed themselves as “citizens”--Attempt to govern them as

“subjects” causes Revolution--Declare American concept, no government

interference with human liberty unless “citizens” grant

government power--Make thirteen nations, each composed of citizens--Its

“citizens,” in “conventions,” constitute each government

by grant of power to interfere with human liberty--“Democracy”

and “Republic” distinguished--Revolution to make American concept

American law.

II. THE STATE GOVERNMENTS FORM A UNION OF STATES _Page 17_

Revolution continues--Thirteen nations form league or federation of

states--Members of federation act through respective attorneys-in-fact,

state legislatures--Legislatures constitute federal government

and grant its federal powers to govern states--Distinction

between legislatures’ power to make federal Articles and citizens’

power to make national Articles under which men are governed--Citizens’

power exercised in 1776 and legislatures’ power in

1781--Revolution won, establishing American concept as American

law.

III. AMERICANS FIND THE NEED OF A SINGLE NATION _Page 25_

Federation of states unsatisfactory--General government, with only

federal power to govern states, not able to secure what whole

American people want--They learn need of general government

with some enumerated national powers to govern men.

IV. THE BIRTH OF THE NATION _Page 29_

Philadelphia Convention assembles ostensibly to draft and propose

purely federal Articles--It drafts and proposes a “Constitution”

with both national and federal powers--First Article is the constitution

of American national government because it grants all

the enumerated powers to interfere with human liberty of American

citizens--Fifth and Seventh Articles relate to the grant of

national power, though neither grant it--Other four Articles

neither grant nor relate to grant of national power--Fifth prescribes

constitutional mode for its future grant by American citizens

in “conventions”--Also prescribes constitutional mode for

future grant of federal power by state legislatures--Philadelphia

knows and decides that legislatures can never grant national

power and Articles are sent to “conventions” of “citizens,” as in

1776--Whole American people become a nation--American citizen

first exists on June 21, 1788, when American citizens make

their only grant of national powers--States and their citizens and

constitutions and governments are made subordinate to citizens

of America--These facts entirely forgotten in 1917.

V. THE CONSENT OF THE GOVERNED _Page 55_

Education of personal experience, from 1775 to 1790, accurately

taught science of government to average American--It taught

him that citizens only can grant government power to interfere

with human liberty, though legislatures can grant federal power

to govern states--Modern leaders lack that practical education

and the accurate knowledge it taught the early American--Modern

average American has sensed something curious about making

of Eighteenth Amendment--That he may understand what

he senses and know why there is no such Amendment, must

briefly consider the Constitution.

VI. THE CONVENTIONS GIVE THE CONSENT _Page 64_

In conventions, whole American people themselves make

Constitution--“Felt and acknowledged by all” that legislatures could

never make First Article because it constitutes government of men--From

early American, modern American learns that grant of power

to govern men is the constitution of the government of men--Because

First Article grants of that kind are enumerated, American

government known as government of enumerated powers--Primal

security to human freedom that citizens, not legislatures,

grant all power of that kind--Because this primal security

known to early Americans, their “conventions” insist that Constitution

(Tenth Amendment) declare that every power of that

kind not granted by American citizens remains with American

citizens--Our own leaders have not known this security or understood

that all ungranted powers of that kind were reserved by

American citizens to themselves.

VII. PEOPLE OR GOVERNMENT?--CONVENTIONS OR LEGISLATURES? _Page 80_

American nation a society of men like any other society of men--Herein

called America to distinguish it from federation of united states

which can make and are governed by federal parts of Constitution--Like

any society of men, America created by its original

human members in their “conventions”--Their knowledge of

that fact becomes our knowledge--Supreme Court knows and

states it--Citizen of America distinct from state citizen, though

the same human being--Distinction vitally important, as Supreme

Court explains--Only citizens of America can grant new power

to interfere with their own human freedom--All original American

citizens know this--Many explain it to us, Daniel Webster

vehemently and clearly.

VIII. PHILADELPHIA ANSWERS “CONVENTIONS, NOT LEGISLATURES” _Page 95_

Philadelphia knowledge and decision that legislatures of states, members

of the federation, cannot make Articles which create government

power to interfere with freedom of men, members of

the nation--The decision, based on knowledge of basic American

law, is embodied in Seventh Article and proposing Resolution

at Philadelphia in 1787--Human members of nation described

as “conventions” in Seventh Article--Story of Seventh

Article at Philadelphia--Madison asks searching question of any

American who thinks possible any other decision than the Philadelphia

decision--Now educated with the early Americans, we

give the same answer as that of Philadelphia, while our leaders

have given the opposite answer.

IX. THE FIFTH ARTICLE NAMES ONLY “CONVENTIONS” _Page 110_

Philadelphia story of Fifth Article--Relates to future grants of

national power by American citizens but makes no grant--Meaning

to “conventions” must be meaning now--Madison writes it at

Philadelphia, and he and many others from Philadelphia are in

“conventions” who made it--Its Philadelphia story from May 29

to September 10, 1787, one week before end of Convention.

X. ABILITY OF LEGISLATURES REMEMBERED _Page 115_

Fifth Article in last Philadelphia week--Philadelphia, previously

concentrated on its own First Article, has so far forgotten that

future Articles will probably be federal, which legislatures can

make--Wherefore, legislatures not yet mentioned in tentative

Fifth Article--Madison and Hamilton recall probability that all

future Articles will be federal and suggest a Fifth Article which

mentions “legislatures” as well as “conventions”--Full record of

September 10, 1787, day of that Madison suggestion--Added mention

no support for modern error that Fifth Article a “grant”--Moderns

ignore that one supposed grantee is supposed grantor

and that “grant” would make Americans “subjects”--In language

of Fifth Article, Philadelphia finds no suggestion of modern

error and the Article, with its added mention of legislatures,

is passed without discussion--Having no suggestion of a

“grant,” it is known at Philadelphia to be constitutional mode of

future exercise of the two existing but different abilities of

“legislatures” and “conventions”--Madison, Wilson and Marshall

on this fact--Full Philadelphia story of September 15, when

Fifth Article finally considered--Defeat of Gerry’s motion to

strike out “by conventions in three-fourths thereof”--Modern

error of thinking and acting as if that motion had been carried.

XI. CONVENTIONS CREATE GOVERNMENT OF MEN _Page 141_

“Conventions” of Seventh Article, making Constitution, know same

“conventions” of Fifth Article to be themselves, the American

citizens--Americans, in “conventions,” with American concept

that government exists solely to secure individual and his freedom,

read and make Fifth Article--Madison hits hard modern

concept of Bolshevist Russian and Eighteenth Amendment American

that human beings are made for kings or legislatures or

political entities--Conventions hear Madison explain Fifth Article

as prescribing procedure in which “conventions” can again

assemble constitutionally to exercise their power and in which

“legislatures” may act constitutionally in making future federal

Articles--Recognize its constitutional mode as exact Revolutionary

mode just followed by Madison and others at Philadelphia

and that future Congress should do exactly what Philadelphia

did and no more--Recognize Fifth Article settles how each “convention”

vote shall count as one vote of American citizens and

how many “convention” votes shall be necessary and sufficient to

make a future Article which “conventions” of American citizens

alone can make--Recognize words “in three-fourths thereof” after

word “conventions” most important words in Fifth Article and

a great security to individual liberty--Average American now

sees why Eighteenth Amendment Tories seek escape from that

security by asserting Constitution created supreme will independent

of American citizens, i.e., will of state legislatures.

XII. TWO ARTICLES NAME “CONVENTIONS” _Page 171_

From 1775 to 1789, all Americans aim to secure individual welfare--With

this one aim, “conventions” continue to read Fifth Article

and recognize statements of Fifth and Seventh, as to “conventions,”

identical in nature--Recognize both ordain WHEN convention-made

Articles, granting power to interfere with individual

freedom, shall validly constitute government of American

citizens--Recognize “conventions” of Seventh and Fifth as whole

American people of Preamble--Recall ability of legislatures to

make federal Articles and know mention of “conventions” and

“legislatures” grants no power to either--State “legislatures”

lesser reservee and “conventions” of American citizens most important

reservee in Tenth Amendment--“Conventions” recognize

two exceptions in Fifth Article, not as exceptions from power

granted therein, but as intentional refusal to provide a constitutional

mode in which existing ability may be exercised to do what

is mentioned in two exceptions--“Conventions” finish reading

Fifth Article and, from its clear language, know it is not a grant

of power but a constitutional mode for the exercise of either of

two existing powers, one limited and the other unlimited.

XIII. CONVENTIONS KNOW “CONVENTIONS” ARE “THE PEOPLE” _Page 180_

Americans, in their “conventions,” explain and support and oppose

the proposed Articles--Whether for or against the Articles, their

invariable and clear statements confirm the “convention” knowledge

that the Fifth is not a grant of power either to themselves,

“conventions,” or to the state “legislatures”--Conventions

check Fifth Article mention of “legislatures” and “conventions”

with statement that proposed constitution is “one federal and

national constitution”--Henry insists that proposed Articles make

the state legislatures weak, enervated and defenseless--“Abolish

the state legislatures at once”--Wilson admits that the Articles

take power from the state legislatures and give them no new

power--“The diminution is necessary to the safety and prosperity

of the people”--Madison explains the importance of his

words, “in three-fourths thereof,” after the word “conventions,”

as requiring more than a mere majority of American citizens for

new interference with individual liberty--Hamilton states his

own conviction that amendments will be to the federal and not

the national part of the Constitution and emphasizes the legal

necessity that grants of national power must come from the people

and not the legislatures--“Conventions” reluctant to give

even the enumerated national powers of the First Article and

insist on the Tenth Amendment declaration that all other power

of that kind is reserved by themselves to themselves--“In their

hands it remains secure. They can delegate it in such proportions,

to such bodies, at such times, and under such limitations,

as they think proper”--In 1907, the Supreme Court states, what

the “conventions” knew, that all powers not granted in the First

Article are reserved to the “conventions” of American citizens

“and can be exercised only by them or on further grant from

them”--The “conventions,” having secured the liberty of American

citizens from all government interference except under the

First Article grants, end their great work.

XIV. SEVENTEEN ARTICLES RESPECT HUMAN FREEDOM _Page 212_

Hamilton’s conviction, that all Amendments would be of the federal

kind which legislatures can make, verified by the seventeen

amendments prior to 1917--As Supreme Court has repeatedly

held, the first ten Amendments merely declared what was already

in Constitution--A relevant and important declaration in the

Tenth is that the entire Constitution gives no power of any kind

to state legislatures--Amazing modern Tory concept that these

ten Amendments are an American Magna Charta or compact

between a master government and its “subjects”--Madison and

Supreme Court on the “impious doctrine” that Americans are

“subjects”--Eleventh and Twelfth Amendments have naught to

do with individual freedom--Thirteenth, Fourteenth and Fifteenth

neither exercise nor create government power to interfere with

human liberty--On the contrary, their purpose and effect are to

make human liberty universal--Sixteenth removes a federal limitation,

in favor of the states, from a power the “conventions”

gave to Congress--Seventeenth relates only to the election of

Senators--When 1917 opens, Congress has no power to interfere

with individual liberty of American citizens which Congress did

not have in 1790--When 1917 opens, no legislatures, since July

4, 1776, have dared to interfere with the individual liberty of the

American citizens outside the First Article grants or have dared

to attempt to create a new power so to interfere--When 1917

opens, we have not become “subjects” but still are citizens of

America.

XV. THE EXILED TORY ABOUT TO RETURN _Page 231_

When 1917 begins, relation of American citizen to all governments

in America and relations of governments to one another just

the same as in 1790--American government can interfere with

the American citizen on matters enumerated in the First Article--No

other governments can interfere with him at all--The government

of each state can interfere with its own citizens, except

as the American Constitution forbids, on matters in which the

citizens of each state give their own government power to interfere--No

government, either American government or state government,

can get any new power of that kind except directly

from its own citizens--No government can get any power of

that kind from other governments--New federal power of American

government can be granted by members of federation, the

states, acting through their respective attorneys-in-fact, the state

legislatures--State legislatures are powerless to govern or to

create power to govern American citizen--In these respects, supremacy

of American citizens over all governments same in 1917

as in 1790--1917 leaders did not know, what 1790 average American

knew, that Revolution had ended forever Tory law that

governments are master and Americans are “subjects.”

XVI. THE TORY “EIGHTEENTH AMENDMENT” _Page 239_

December, 1917, closing month of America’s first year in World War

for human liberty--American citizens have but one government,

Congress, which can interfere with their human liberty in any

matter--Congress knows it cannot interfere by making the command

which is Section 1 of the Eighteenth Amendment--Amazing

Resolution in Senate that legislative governments of state

citizens be asked directly to interfere with human liberty of

American citizen in matter not enumerated in First Article--Resolution

asks some state governments to give only American

government a new enumerated power to interfere with freedom

of American citizen, the first new power of that kind since June

21, 1788--Some leaders question “wisdom” of Resolution--No

leader questions power of any governments (except Congress in

the enumerated First Article matters) to interfere with freedom

of American citizen--No leader questions power of any or all

governments to give a new enumerated power of that kind to

the only American government or to any government--No leader

knows that, in 1917 as in 1787 and in 1790, only the “conventions”

of American citizens can make the command or the grant

of power--House of Representatives adds absurdity to absurdity--Adds

to Resolution that state governments, while interfering

with liberty of American citizen and granting only American

government first new enumerated power so to interfere, should

also give themselves (the granting governments) the very power

they assume to exercise over American citizens--Webb, explaining

to the House his proposed change in Section 2 of the Amendment,

states this to be the meaning and purpose of the change--Article

IV contrasted with absurd modern error, as to meaning

of Article V--That modern error is sole basis of Tory concept

that any or all governments could make Articles like First

Article or supposed Eighteenth Amendment--Article IV guarantees

to citizens of each state that their state government shall be

republican, getting from them its every power to interfere with

their individual freedom--Senate Resolution asks state governments,

outside each state, to give each state government power

to interfere with the freedom of its own citizens--Congress of

1917 acted on assumption that Article V meant to enable Congress

to suggest any desired breach of the guarantee in the

closing words of Article IV.

XVII. THE TORY IN THE HOUSE _Page 254_

Despite our education with Americans from 1775 to 1790, in 1917,

when Americans are at war for human liberty, the only American

government recognizes other governments (the state legislatures)

as an omnipotent Parliament with all American citizens

as “subjects”--Volstead Act is only statute in America, interfering

with individual liberty, which does not even pretend to

be founded on direct grant of power from its citizens to the government

which enacted it--Webb, in the House, states, “We

thought it wise to give both the Congress and the several states”

new power to command the American citizen on this matter not

enumerated in the First Article--His tribute to the state governments,

as master governments of American citizen, exactly

the tribute paid by Lloyd George to the power of the Westminster

Parliament over its “subjects”--Marshall, Hamilton, Madison,

the Virginia Convention of 1788, the Supreme Court repeatedly

and even in 1907, flatly deny the concept of Webb and the 1917

Congress--Concept of latter merely repeats mistake of government

counsel on which Supreme Court dwelt with emphasis in

1907--Ignores most important factor in Tenth Amendment, “people”

or “conventions”--From the early Americans, “Who but the

people can delegate powers? What have the state governments

to do with it?” and “How comes it, sir, that these state governments

dictate to their superiors--to the majesty of the people?”--Webb

reads to the House a Fifth Article in which “conventions”

does not appear--Madison tells Webb and all of his Tory

concept, “These gentlemen must here be reminded of their error.

They must be told that the ultimate authority resides in the people

alone, and that it will not depend merely on the comparative

ambition or address of the different governments, whether either,

or which of them, will be able to enlarge its sphere of jurisdiction

at the expense of the other”--Webb closes in the House with

an eloquent appeal to every other follower of Mohammet.

XVIII. THE TORY IN THE SENATE _Page 275_

Calm and sound reasoning of Federalist, advocating the real

Constitution, contrasted with irrelevant personal abuse by those

supporting the imaginary new Constitution--Latter, because facts

and law make their Tory concept absurd, revive “impious doctrine

of Old World” that human beings were made for political

entities and governments--Senator Sheppard and his eloquent

claim that American citizens, like other machinery, must be

kept in good condition for their government owner--His “discovery”

that the states, political entities, made the Constitution

of America, the nation of men--Story of America (from May

29, 1787, to July, 1917) being a sealed book to him, he does

not know that our Constitution is both federal and national--Supreme

Court, in early days and in 1907, and Webster and

Lincoln tell him his mistake--Not knowing the decision of Gettysburg,

recorded at Appomattox, he chooses between Lord North

of 1775 and Calhoun and summons the latter to prove that the

American people did not make their Constitution and its grant of

enumerated power to interfere with their individual freedom--Jefferson,

Pendleton, Webster and many other Americans correct

Sheppard’s error of fact--As the American people of 1776

accomplished their successful Revolution against government,

may it not be the thought of Sheppard and other Tories that the

Eighteenth Amendment has been established by a successful revolution

of government against the people--Marshall again tells

us of the American day when the legal necessity “was felt and

acknowledged by all,” that every power to interfere with human

liberty must be derived from the people in their “conventions”--Acting

on the Congress proposal of 1917, governments of state

citizens command the American citizen and create a new government

power to interfere with his individual liberty--But no

statesman has yet told us how or when, prior to 1917, we became

“subjects.”

XIX. ARE WE CITIZENS? _Page 298_

Hamilton thinks it a prodigy that Americans, in “conventions,”

voluntarily constitute the enumerated First Article government powers

to interfere with their individual liberty--Marshall, in Supreme

Court, declares “conventions” to be the only manner in

which they can act “safely, wisely and effectively” in constituting

government of themselves, by making such grants--When

proposed 1917 first new grant of that kind is supposedly made,

American people and their “conventions” are completely ignored--The

proposers have a Fifth Article which does not mention

“conventions”--The proposers have the old Tory concept, that

the people are the assets of the state and that government is the

state--Still trying to find out how and when we became “subjects,”

we expect to get information from the litigations of 1920--We

expect great counsel, on one side, to urge the facts we

know--We fear that other great counsel will urge, in reply,

some fact or facts which we have not been able to ascertain--We

are certain that there is no Eighteenth Amendment, if the

facts we have learned are all the facts--That we may listen

intelligently to all the great counsel, we review some of the facts

we have learned.

XX. LEST WE FORGET _Page 307_

“The important distinction so well understood in America, between a

constitution established by the people and unalterable by the

government and a law established by the government and alterable

by the government”--Our first glance at briefs of 1920 gives

us hope that some modern leaders have acquired the knowledge

of Hamilton and his generation--We find, in one brief, in Marshall’s

words, the Supreme Court statement of the fact that

“conventions” of the people, not states or their governments, made

the Constitution with its First Article grants of power to interfere

with human liberty--But this brief, to our amazement, is that of

the foremost champion of the only other grant of that kind, the

Eighteenth Amendment, a grant made entirely by government to

government--In 1920, seven litigations argued and reported under

the one title “The National Prohibition Cases”--Distinguished

counsel appear for many clients, for the claimed omnipotent Parliament

of America, for the American government which we

used to know as our supreme government, for a few state governments

who did not wish to be part of the omnipotent Parliament,

for those engaged in the lawful business of manufacturing,

etc., the commodities named in the Eighteenth Amendment--Like

the human right to breathe, such manufacture, etc., was not the

privilege of a citizen--Both rights are among the human rights

men have before they create nations and give governments power

to interfere with some or all of their human rights--Citizens of

America, giving their only American government its enumerated

powers, gave it no power to interfere with the human right mentioned

in the new Amendment--Human rights never are privileges

of citizens--Citizens establish government to protect existing

human rights--Only “subjects” get any rights or privileges from

government--All early Americans knew these primal truths--Neither

the French aristocrats, before French Revolution, nor

Tories of 1776 in England or America knew them--Eighteenth

Amendment Tories do not know them--Madison (in 1789) and

Supreme Court (in 1890) knew that commodities named in new

Amendment are among those in which a human right “of traffic

exists”--In litigations of 1920, no counsel appear on behalf of

the human rights of American citizens--But we know that no

decision of our own Supreme Court, established to secure our

human rights, although the decision may settle disputes between

other litigants, can change us from “citizens” into “subjects.”

XXI. BRIEFS IGNORE THE AMERICAN CITIZEN _Page 325_

No counsel knows all are discussing whether Americans, twelve years

after 1776, voluntarily became “subjects”--Common concept of

all that Fifth Article a “grant” of power to state governments

(of state citizens) making them attorneys-in-fact for citizens of

America--Discussion entirely as to extent of power “granted”--Eighteenth

Amendment concept that Fifth Article “grant” made

some governments of state citizens a supreme American Parliament,

unrestrained master of every human right of all American

citizens--Opposing concept that the Fifth Article “grant” made

those state governments a Parliament whose one limit is that it

cannot interfere with the sovereignty of any political entity which

is a state--Both concepts ignore supremacy of nation of men over

federation of states--Both ignore dual nature of “one national

and federal Constitution”--Both ignore “conventions” in Seventh

and Fifth Articles as the citizens of the American nation--Both

ignore that each state “legislature” is attorney-in-fact for the

citizens of its own state and that no legislatures are (except

Congress in enumerated matters) attorneys-in-fact for the citizens

of America in any matter--Our facts, brought from our education with

the early Americans, all ignored by all counsel in the litigations--The

Virginia Convention itself and Lee, Pinckney, Hamilton,

Madison, Wilson, Iredell and others state what all counsel

of 1920 entirely ignore.

XXII. NO CHALLENGE TO THE TORY CONCEPT _Page 335_

Eighteenth Amendment rests on imaginary Fifth Article “grant”

making the state governments of state citizens attorneys-in-fact

for the citizens of America, empowered to give away all human

rights of the citizens of America--“Grant” assumed in every

brief--No brief recognizes that one supposed “grantee” is supposed

“grantor”--Or that each of two supposed “grantees” was

a competent maker of Articles (as proposed Articles were respectively

federal or national) before and when the “conventions”

made the Fifth Article--Or that Philadelphia Convention knew

and held “conventions” existing ability competent to make any

Article and state legislatures, existing ability incompetent ever to

make Articles like First Article or Eighteenth Amendment--Or

that Tenth Amendment declares no power given to state “legislatures,”

while all ability to make national Articles “reserved” to

“conventions” of “the people” of America--No brief challenges

sheer assumption of Fifth Article “grant” or supports assumption

by any fact--Every brief, for or against Amendment, is based on

the sheer assumption--No brief knows that enumerated powers of

only American government to interfere with human freedom can

be changed by no one save the citizens of America themselves in

their “conventions”--Madison’s tribute to these “conventions” in

which “free inhabitants” constitute new government power over

themselves--Hamilton explains great danger to human liberty if

“legislatures” or permanent government bodies could create such

new government power--That knowledge of his generation confirmed

by story of government-made supposed Eighteenth Amendment--Our

gratitude to that generation of men who (1776) made

it and (1788) left it impossible that governments could create

new government power to interfere with American human liberty--Our

regret that modern leaders have not known this great and

immutable protection to American liberty.

XXIII. THE CHALLENGES THAT FAILED _Page 350_

Supreme Court wisely writes no opinion in “National Prohibition

Cases”--In each of four numbered paragraphs, Court states its

own negation of one challenge made to new Amendment--All

four challenges are negatived in seventeen lines of statement--First

two challenges trifling and purely technical--Third challenge

based on rights of the citizens of some particular state--Fourth

challenge to “extent” of Fifth Article “grant” of power

by “conventions” to “conventions” and “legislatures”--This challenge

asserts “grant” which advocates of Eighteenth Amendment

must and cannot prove--Court negative amazingly accurate--All

counsel have argued incessantly about “extent” of power “granted”

by Fifth Article--Court negatives in statement which speaks of

power “reserved” in Fifth Article--Concept of “grant” disappears--Court

knows what “conventions” knew, when they made

Fifth Article, when they insisted on Tenth Amendment Declaration

expressly stating the distinct reservees of the two existing

powers “reserved” in Fifth Article--Supreme Court of Marshall’s

day knows it and Supreme Court of 1907 knows it--“Citizen or

Subject?”--Eighteenth Amendment answers “Subject”--Real Constitution

answers “Citizen”--“Conventions” insisted on plain statement

of correct answer--Counsel of 1920 do not know it--Their

four challenges make plain that fact--All challenges based on

error that governments of state citizens are attorneys-in-fact for

citizens of America--In Virginia Convention and in Supreme

Court, Marshall explains that powers of state governments “proceed

not from the people of America” but from the citizens of each

respective state--No counsel of 1920 knows this important fact.

XXIV. GOVERNMENTS CLAIM AMERICANS AS SUBJECTS _Page 371_

Patrick Henry, opposing Constitution in the “conventions,” knows that

it takes power from the state legislatures and gives them no

power--All modern leaders “know” that it gives those legislatures

great power as attorneys-in-fact for the citizens of America--Many

modern leaders “know” that it makes those legislatures

an omnipotent Parliament over the citizens of America--No modern

leaders remember 1781 and 1787 existing ability of the state

legislatures to make federal Articles or Articles not creating

government power to interfere with human liberty--Common

modern concept that Fifth Article is “grant” to these “legislatures”

and to the very “conventions” which made the Fifth Article--Leading

brief, against Amendment, more than fifty times admits

or asserts this imaginary and remarkable “grant”--Some extraordinary

concepts of our American institutions in briefs--In a

famous opinion, Marshall explains a fact and on it bases the

entire decision of the Supreme Court--The fact itself is that the

Constitution granted no power of any kind to the state legislatures--No

brief knows or urges this fact or any of the facts we

learned in the “conventions,” the facts on which we base our

challenge to the Eighteenth Amendment concept that we are

“subjects”--Briefs for the Amendment examined to find out why

we are supposed to be “subjects”--Amazing claim that, when

governments alone change the national part of the Constitution,

Supreme Court has no power even to consider whether governments

in America can make a change in the enumerated powers

given to their own government by the citizens of America--Remarkable

Tory concept that the number of Senators from each

state is the only thing in America immune from government

invasion, if enough governments combine--Indignation of American

citizen changes to mirth when he realizes this concept to be

only basis of thought that he is a “subject” or that there is an

Eighteenth Amendment--American citizen, seeking to find (in the

briefs for the Amendment) what happened, between 1907 and

1917, to make him a “subject,” startled to hear the answer,

“Nothing”--Citizen’s amusement increased on learning, in same

briefs, that whole American people, in Constitution which expressly

declares it gives no power to state governments, made

those governments of state citizens irrevocable and omnipotent

attorneys-in-fact for the citizens of America--Amusement increased

by finding that main champion of Tory concept quotes

Marshall’s Supreme Court story of the making of the Constitution,

but omits, from the quotation, the paragraph in which Marshall

points out that everyone knew why the “legislatures” could not

make and only the “conventions” could make the national First

Article, with its grant of enumerated power to interfere with

human liberty--Curiosity added to mirth on finding this brief

echo Madison’s own knowledge that his Fifth Article contains

nothing but “procedural provisions,” while brief bases its entire

contention on mere assertion that Fifth Article is greatest grant

of power ever made by free men to government.

XXV. CITIZEN OR “EIGHTEENTH AMENDMENT”? _Page 397_

Congress is only legislature with any power of attorney from the

citizens of America--At very beginning and very end of original

Constitution, citizens of America expressly so state--All briefs of

1920 based on asserted assumption denying those two statements

and insisting Fifth Article is “grant” to governments of state

citizens--Briefs for new Amendment assert “grant” made governments

of state citizens omnipotent master of everything in America

(including all human rights) save number of Senators from each

state--On this Tory concept depends entirely existence of Eighteenth

Amendment--Tory concept being absolute myth, Amendment

disappears--Amusing to find Tory briefs for Amendment

with American citations and quotations which annihilate Tory

concept--Unconscious humor of Wheeler surpasses “Comic Blackstone”--Tory

legions, fighting under crescent of Mohammet, claim

to be American and Christian crusaders--Americans would have

remained “subjects” if Parliament, passing the Stamp Act, had

said: “You subjects must obey this command we make but, making it,

we do not legislate”--“Statement” that citizens of America universally

demanded this sole Amendment which attempts to change

the First Article enumerated powers--“Proof” that 4742 Tory

members of governments of state citizens said “Yes” to the

change--Jefferson and Madison tell us that concentration of all power

in legislatures “is precisely the definition of despotic government,”

that 173 “despots would surely be as oppressive as

one,” and that “an elective despotism was not the government we

fought for”--Calhoun contended one state might defy supreme

will of citizens of America--Tories for Amendment go far beyond

doctrine finally repudiated by Gettysburg--On Tory concept that

we are “subjects” of omnipotent government, assert that some

governments of state citizens may dictate, in all matters of human

right, what the citizens of America may and may not do--Echo

from “conventions” which made Fifth Article, “How comes it,

sir, that these state governments dictate to their superiors, to the

majesty of the people?”

XXVI. THE AMERICAN CITIZEN WILL REMAIN _Page 416_

Supreme Court holds American people, “for most important purposes,”

chose to be one nation, with only one government of the First

Article enumerated powers to interfere with human liberty--America,

the nation of men, and United States, the subordinate

federation of states--Tories for new Amendment must prove that

American people, as one “important” purpose, meant that governments

of state citizens could interfere with every human right of

American citizens--Reserved rights and powers of American citizens

are entirely at their own direct disposal, for exercise or

grant, “despite their legislatures, whether representing the states

or the federal government”--American citizen must know this of

his own knowledge or his human freedom will disappear--Emmett

and Webster and their generation knew it--Madison

writes Fifth Article and states exactly what it is to the “conventions”

which made it--Hughes unable to begin his Tory argument

for new Amendment without adding to that Madison statement

what Madison pointedly did not say--Senate now about to repeat

1917 blunder that governments of state citizens have aught to do

with altering the national part of the American Constitution,

which part is within the exclusive control of the citizens of

America themselves--“Conventions” are the people--“Legislatures”

are governments--“Citizen or Subject?”--Supreme Court

answer certain--Court’s history and traditions show American

concept of Hamilton that this Court bulwark of American citizen

against government usurpation of power to interfere with human

liberty--Webster forecast Court decision on new and Tory

Amendment, answering “Citizen or Subject?”--All Americans

once knew same correct answer to same question by Pendleton in

Virginia Convention of 1788, “Who but the people can delegate

power? What have the state governments to do with it?”

APPENDICES

I. THE ORIGINAL CONSTITUTION OF THE UNITED STATES _Page 445_

II. THE RESOLUTION WHICH PROPOSED THE CONSTITUTION

TO THE CONVENTIONS OF THE PEOPLE OF AMERICA _Page 458_

III. THE FIRST SEVENTEEN AMENDMENTS TO THE CONSTITUTION _Page 460_

IV. THE ALLEGED EIGHTEENTH AMENDMENT _Page 465_

V. THE NINETEENTH AMENDMENT _Page 466_

CITIZEN OR SUBJECT?

CHAPTER I

SUBJECTS BECOME CITIZENS

The average American of this generation does not understand what it

means to be a citizen of America. He does not know the relation of

such a citizen to all governments _in_ America. He does not know the

relations of those governments to one another. If this ignorance should

continue, the citizen of America would disappear. The American would

become again a subject, as he was when the year 1776 opened.

The supposed Eighteenth Amendment is not in the Constitution unless the

American already is a subject.

It is vital to every individual interest of the average American that

he _should_ know these things which he does not know. Happily for him,

_his_ ignorance is not as that of the public leaders of his generation.

_Their_ concept of the American and his relation to governments in

America is one which contradicts the most definitely settled and

clearly stated American law. On the other hand, the average American

merely has a mind which is a blank page in these matters. As a result,

it is the greatest danger to his individual interest that _their_

concept largely guides his attitude in public affairs of the utmost

moment to him.

The Americans of an earlier generation, who created the American nation

of men and all governments _in_ America, accurately knew the status

of the American citizen and his relation to all governments. Their

accurate knowledge was an insistent thing which guided their every act

as a people in the period between 1775 and 1790, in which latter year

the last of the Americans became citizens of America. Their knowledge

came to them from their own personal experience in those fifteen years.

They were a people, born subjects of government, who died citizens

of a great nation and whose every government, _in_ America, was

their servant. This great miracle they themselves had wrought in the

fifteen years between 1775 and 1790. Their greatest achievement, as

the discerning mind has always realized, is what they did in the last

four of those momentous years. They brought to its doing their valuable

experience and training of the previous eleven years. That is why they

succeeded, so far as human effort can secure human liberty by means

of written constitutions of government, in securing to themselves and

their posterity the utmost measure of protected enjoyment of human life

and happiness. That we, their posterity, may keep their legacy intact

and transmit it to the generations to come, it is necessary that we,

the average Americans, should share somewhat with them their amazingly

accurate knowledge of the simple but vital facts which enabled them

to create a nation and, by its American Constitution, to secure to

themselves, its citizens, protected enjoyment of life, liberty and

happiness.

When they were actually engaged in this work of creation, it was

truthfully said of them that “The American people are better acquainted

with the science of government than any other people in the world.”

For over a hundred years the history of America attested the truth of

that statement. As they were a simple people, their knowledge of the

science of government was derived from their accurate understanding of

a few simple facts. It is a certainty that we can keep their legacy

by learning those same facts. Let us quickly learn them. The accurate

knowledge of them may best be acquired by briefly living again, with

those simple Americans of an earlier generation, through their days

from 1775 to 1790.

The individual Americans of that generation were all born subjects

of the British government. We do not understand the meaning of that

statement until we accurately grasp the vital distinction between a

“subject” of a government and a “citizen” of a nation.

It is hardly necessary to point out, but it is amazingly important

to remember, that a “subject,” as well as a “citizen,” is first of

all a human being, created by an omnipotent Creator and endowed with

human rights. All would be well with the world, if each human being

always accurately knew the difference between right and wrong and if

his accurate knowledge invariably controlled his exercise of his human

freedom of will. In that case, no human government would be needed to

prescribe and to enforce rules of personal conduct for the individual.

As such is not the case, human government must exist. Its sole reason

for existence, therefore, is that it may prescribe and enforce rules

for those whom it can compel to obey its commands and that it may thus

secure the utmost measure of protected enjoyment of human rights for

those human beings whose government it is.

Time does not permit and necessity does not require that we dwell upon

the various types of government which have existed or which have been

created supposedly to meet this human need. It is sufficient to grasp

the simple and important fact that government ability to say what men

may or may not do, in any matter which is exercise of human freedom,

is the very essence of government. Where a government has no ability

_of that kind, except_ what the men of its nation grant to it, where

those men limit and determine the extent of that ability in their

government, the men themselves are citizens. Where a government claims

or exercises any ability _of that kind_, and has not received the grant

of it directly from the men of the nation, where a government claims

or exercises any ability _of that kind_, without any grant of it, or

by grant _from_ government _to_ government, the men of that nation are

subjects.

In the year 1775, under the British law, the Parliament at Westminster

claimed the unqualified right to determine in what matters and to

what extent laws should be made which would interfere with individual

freedom. From such decision of the legislative part of the British

Government there was no appeal save by force or revolution. For this

reason, that every human being under that Government must submit to any

interference with individual freedom commanded by that Legislature,

all British human beings were “subjects.” And, as all Americans were

then under that British Government, all Americans were then “subjects.”

Such was their legal status under the so-called British Constitution.

Curiously enough, however, until a comparatively short time prior to

1775, such had _not_ been the _actual_ status of the Americans. In this

sharp contrast between their legal and their actual status, there will

be found both the cause of their Revolution and the source of their

great and accurate knowledge of the sound principles of republican

government which they later made the fundamental law of America.

From the day their ancestors had first been British colonists in

America their legal status had been that of subjects of the British

Government. But, so long as they remained merely a few widely scattered

sets of human beings in a new world, struggling to get a bare existence

from day to day, they offered no temptation to the omnipotent British

Government to oppress them, its subjects. They still had to show the

signs of acquiring that community wealth which has always been the

temptation of government to unjust exaction from the human beings it

governs. For that reason, their legal government concerned itself very

little about them or their welfare. It thus became their necessity to

govern themselves for all the purposes for which they locally needed

government as security to their individual welfare.

Only thirteen years after the first permanent English settlement in

Virginia, “Sir George Yeardley, then the Governor of the colony, in

1619 called a general assembly, composed of representatives from

the various plantations in the colony, and permitted them to assume

and exercise the high functions of legislation. Thus was formed and

established the first representative legislature that ever sat in

America. And this example of a domestic parliament, to regulate all the

internal concerns of the country, was never lost sight of, but was ever

afterwards cherished [until 1917] throughout America, as the dearest

birthright of freemen.” (1 _Ell. Deb._ 22.)

“On the 11th of November, 1620, those humble but fearless adventurers,

the Plymouth colonists, before their landing, drew up and signed an

original compact, in which, after acknowledging themselves subjects

of the crown of England, they proceed to declare: ‘Having undertaken,

for the glory of God, and the advancement of the Christian faith, and

the honor of our king and country, a voyage to plant the first colony

in the northern parts of Virginia, we do, by these presents, solemnly

and mutually, in the presence of God and of one another, covenant and

combine ourselves together into a civil body politic, for our better

ordering and preservation, and furtherance of the ends aforesaid. And

by virtue hereof do enact, constitute, and frame, such just and equal

laws, ordinances, acts, constitutions, and officers, from time to time,

as shall be thought most meet and convenient for the general good of

the colony; unto which we promise all due submission and obedience.’

This is the whole of the compact, and it was signed by forty-one

persons.

“It is, in its very essence, a pure democracy; and, in pursuance of

it, the colonists proceeded soon afterwards to organize the colonial

government, under the name of the Colony of New Plymouth, to appoint

a Governor and other officers and to enact laws. The Governor was

chosen annually by the freemen, and had at first one assistant to aid

him in the discharge of his trust. Four others were soon afterwards

added, and finally the number was increased to seven. The supreme

legislative power resided in, and was exercised by, the whole body of

the male inhabitants, every freeman, who was a member of the church,

being admitted to vote in all public affairs. The number of settlements

having increased, and being at a considerable distance from each other,

a house of representatives was established in 1639, the members of

which, as well as all other officers, were annually chosen.” (1 _Ell.

Deb._ 25.)

These are two examples typical of the way in which the English

colonists, for the first hundred years, largely governed themselves by

legislators chosen from among themselves. In this manner, while legally

“subjects” of their European government, these Americans were actually

“citizens” of their respective communities, actually governed in their

individual lives and liberties by governments which derived all their

powers of government from these “citizens.” In this manner, through

the best teacher in the world, personal experience, they learned the

vital difference between the relation of “subject” and “citizen” to

governments. Later, the echo of that education was heard from Lincoln

when he pleaded that government _of_ the people, _by_ the people and

_for_ them should not perish from the earth.

As early as 1754 these Americans began to feel the first real burden

of their legal status as “subjects.” Their community wealth was

beginning to attract the attention of the world. As a result, the

legal Government awoke to the fact of their existence and of its own

omnipotent ability to levy upon that wealth. The Americans, for more

than a century educated in actual self-government, quickly showed the

result of that education to the accurate knowledge that no government

can have any just power except by the consent or grant of those to be

governed by the exercise of such power. As far back as 1754, deputies

of the various American colonies, where human beings had educated

themselves to be free men, assembled at Albany in an endeavor to

propose some compromise by which the American people would be enabled

to preserve their human freedom against unjust interference by the

Westminster Legislature. We are all familiar with the failure of

that endeavor. We are all familiar with the successive steps of the

continuing struggle between “subjects,” educated to be “citizens,” and

an omnipotent government, unshaken in its purpose to make their actual

status the same as their legal one.

When the year 1776 dawned, these Americans were still “subjects” under

the law of the British Empire. They were, however, “subjects” in open

rebellion against their government, justifying their rebellion on

the basic American legal principle that every just power, even of a

lawful government, must be derived from the consent or grant of the

human beings themselves who are to be governed. On the memorable day

in July of that year, despairing of any success in getting the British

Government to recognize that basic principle, and asserting, for the

first time in history, that they themselves were collectively the

possessors of the supreme human will in and for America, they enacted

the immortal Statute which we know as the Declaration of Independence.

The Declaration of Independence, _which was the first political act

of the American people in their independent sovereign capacity_, lays

the foundation of our national existence upon this broad proposition:

“That all men are created equal; that they are endowed by their

Creator with certain inalienable rights; that among these are life,

liberty, and the pursuit of happiness.” (Justice Bradley’s opinion in

Slaughter House Cases, 16 _Wall._ 36, at page 115.)

In this Statute, the American people clearly stated and definitely

settled for all time the basic legal principle on which rests the

validity of every constitutional article or statute law, which either

directly interferes or vests ability in governments to interfere with

an American in the exercise of his human freedom. There is nothing

vague or ambiguous in their statement. The legal principle, so clearly

stated and so definitely settled, is that no government in America can

have any just power of direct interference with individual freedom

unless such power be derived by direct grant from the Americans to be

governed by the exercise of that power.

That Statute has never been repealed. The Americans of that generation,

throughout all the momentous political battles of the next thirteen

years, when they were making and unmaking nations and creating a

federation of nations, and later subordinating it to a union of

human beings, never failed to obey that Statute and to act in strict

conformity to its basic American principle.

From the moment when that Statute was enacted by the supreme will

in America, every American ceased forever to be a “subject” of any

government or governments in the world. It was not until 1917 that any

government or governments dared to act as if the American were still a

“subject.”

In that summer of 1776, as the Americans were engaged with their

former Government in a bitter and protracted war, they had little

time or thought to give, as one people, to the constitution of a

government best designed to secure to themselves the utmost possible

measure of protected enjoyment of individual human freedom. In their

rebellion, they had delegated the management of their common interests

to a committee of deputies from each former colony, which committee

was called the Congress. By the declared supreme will of the whole

American people, the Americans in each former colony now constituted

an independent nation, whose human members were now the “citizens” of

that nation. Under the declared basic American legal principle, it was

imperative that any government should get its every valid power from

its own citizens. Knowing this, the Congress, almost immediately after

the Declaration of July, made the formal suggestion to the citizens

in each nation that they constitute a government for themselves and

that they grant to such government ability to interfere with their

own human freedom in such matters and to such extent as they deemed

wise. The manner in which the citizens of each nation acted upon this

suggestion should have stamped itself so irrevocably upon the mind of

America as never to have been forgotten by any later generation of

Americans. The citizens of those nations were of the “people who were

better acquainted with the science of government than any other people

in the world.” In each nation they were creating the very essence of

security for a free people, namely, a government with limited ability

to interfere with individual freedom, in some matters, so as to secure

the greatest possible protected enjoyment of human liberty. They knew,

as only human beings _could_ know who were then offering their very

lives to uphold the basic law of America, that such ability could

never be validly given to any government by government itself, acting

in any manner, but only by direct action and grant of those later to

be governed by the exercise of that ability. What method did those

citizens, so thoroughly educated in the basic principles of republican

government, employ to secure the direct action of the human beings

themselves in giving that ability _of that kind_ to their respective

governments? They acted upon the suggestion from the Congress of

1776, as Marshall later expressed it from the Bench of the Supreme

Court, “in the only manner in which they can act safely, _effectively_

and wisely _on such a subject_, by assembling in convention” in their

respective states. Long before Marshall voiced judicial approval of

this _American_ method of direct action by the people themselves, in

matters in which only _the people_ themselves can validly act at all,

Madison, in the famous Virginia convention of 1788, paid his tribute to

these conventions of the people in each of the thirteen nations. This

was the tribute of Madison: “Mr. Chairman, nothing has excited more

admiration in the world than the manner in which free governments have

been established in America; for it was the first instance, from the

creation of the world to the American Revolution, that free inhabitants

have been seen deliberating on a form of government, and selecting such

of their citizens as possessed their confidence, to determine upon and

give effect to it.” (3 _Ell. Deb._ 616.)

Later herein there will be occasion to speak at greater length of this

American method of direct action by the people themselves, through the

deliberative conventions of deputies chosen by the people and from the

people for that one purpose, giving to governments a limited ability

to interfere with individual freedom. At this point, it is sufficient

to say that, since 1789 and until 1917, no government in America ever

claimed to have acquired ability _of that kind_ except through the

action of such a convention or conventions or through the direct voting

of its citizens themselves for or against the grant of such ability.

If we again turn our minds upon those later days of 1776, we find

that the Americans, through the direct action of the people in each

independent nation, had become respectively citizens of what we now

know as their respective states, each of which was then a free nation.

Those thirteen nations were then allied in war. There did not yet exist

even that political entity, later created and known as a federation

of those nations. At that time and until quite some years after the

Revolution had ended, there was no such thing as a “citizen” of

America, because the America we know, the organized human membership

society which is the American nation, did not yet exist. At that time

and until the American nation did actually exist, as a political

entity, there was no government in the world and no collection of

governments in the world, which, on any subject or to any extent, could

interfere _generally_ with the individual freedom of Americans, _as_

Americans. In each of the thirteen American nations, the citizens of

that nation had vested their own government with some ability _of that

kind_.

At this point, it is well to digress for a moment in order that we may

well understand that in none of these thirteen nations did its citizens

vest in its government an _unlimited_ ability to interfere with

individual freedom. All the citizens of those respective nations were

then battling with a mighty Government which claimed such unlimited

ability over all of them, as subjects, and they were battling to

establish forever in America the basic doctrine that no government of

free men could ever have unlimited ability of that kind. In each of the

thirteen nations, its citizens vested its government with ability _of

that kind only_ to a limited extent. They did this in strict conformity

to republican principles.

For the many who do not know, it is well to state clearly the

distinction between a pure democracy and a republic. In both, the human

beings constitute the nation or the state and are its citizens. In

both, the citizens _themselves_ limit the matters and the extent in

which they shall be governed at all in restraint of their individual

freedom. In both, therefore, it is accurate and truthful to state

that the people govern themselves. The actual difference lies in one

fact. In a democracy the people _themselves_ assemble and themselves

enact each specific rule of conduct or law interfering with individual

freedom. In a republic, it is always possible that the citizens _may_

assemble, as in a pure democracy, and enact any specific rule of

conduct or law. But, in a republic, its citizens generally prefer to

act, in such matters, through attorneys in fact or representatives,

chosen by themselves for the special purpose of exercising a wise

discretion in making _such_ laws. In a true republic, however, where

the citizens are to remain free men, they secure to themselves absolute

control of their representative lawmakers through two most effective

means. _In the first place_, they ordain that their attorneys in fact

for the purpose of law-making, generally called their legislators,

shall be selected by themselves from time to time, at comparatively

short intervals. This precaution enables the people, through new

attorneys in fact, quickly to repeal a law of which they do not

approve. _In the second place_, the people, in constituting their

government, limit the law-making ability of these temporary attorneys

in fact or legislators. This is the most important fact in a free

republic. Later herein there will be explained the marvelous and

effective manner in which this particular security for human freedom

was later achieved by the citizens of the Republic which we know as

America, when _they_ constituted _their_ government. At present, there

is to be mentioned the general method which the citizens of each of

those thirteen nations, in 1776, employed to achieve this particular

security.

In each nation the citizens constituted a legislature to be their

only attorney in fact for the purpose of making valid laws. In this

legislative department they did not vest enumerated powers to interfere

with individual freedom. But in it they did vest whatever ability

_of that kind_, under the American doctrine of human liberty, they

thought a government of free men or citizens ought to have. They did

not, however, grant unlimited ability to make laws interfering with

individual freedom. When constituting their government they named many

matters in which no laws could be made, such as laws abridging the

right of free speech, laws suspending the privilege of habeas corpus,

etc. Outside these named matters, they granted law-making ability _of

that kind_ to whatever extent American principles of human liberty

determined a government ought to have. The extent of that ability, so

to be determined, they left to the legislature to ascertain in the

first instance. But to the judicial department they gave the right

finally to ascertain and decide whether, in any particular law, the

legislative department had exceeded its granted ability.

In living again the education days of the Americans, who later created

and constituted the republican nation which is America, we have come

now to the close of the eventful year 1776. We find ourselves, at that

time, viewing this status of the American human being and his relation

to all governments.

With his fellow Americans, he has declared that they are not the

subjects of any government or governments in the world. With his

fellow Americans, on many battlefields, he is fighting their former

Government, which still claims that they are its subjects. If he is

a Virginian, he and his fellow Virginians, with the consent of their

fellow Americans, have constituted themselves a free and independent

nation of human beings and have given to _their_ law-making attorney

in fact, the legislature of Virginia, some ability to make laws in

restraint of the individual freedom of Virginians, in such matter and

to such extent, as the citizens of Virginia have deemed wise. In each

of the other twelve nations the situation is the same. In no nation,

in America, has any government servant and attorney in fact of the

people any ability whatever to interfere with human freedom in any

matter or to any extent, except such ability of that kind as has been

given to that government by direct grant from its citizens. Nowhere, in

America, has _any_ government _any_ power whatever, in _any_ matter or

to _any_ extent, to make a valid command restraining the human freedom

of the individual _American_ as an American. All Americans are fighting

throughout America with the armies of the only government in the world

which claims such ability. All Americans everywhere are determined to

win that war and keep it the basic law of America that no government

ever _shall_ have ability _of that kind_ unless the whole American

people, by direct grant from themselves, shall give it to a general

American government. There is yet no republic of America. There are yet

no citizens of America. There are only citizens of thirteen respective

nations, which nations are allied in an existing war. The affairs of

the allied nations are being directed by a committee of delegates

from the different nations, called the Congress. The first Committee

or Congress of that kind, known in history as the First Continental

Congress, had met at Philadelphia from September 5 to October 26, 1774,

and “recommended peaceful concerted action against British taxation

and coercion.” The second Committee, known as the Second Continental

Congress, had assembled, also at Philadelphia, on May 10, 1775, and had

assumed direction of the war.

Citizen or subject? · 第 1 / 17 章