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.