CITIZEN OR SUBJECT?CHAPTER ISUBJECTS BECOME CITIZENS
CITIZEN OR SUBJECT?
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 governmentsinAmerica. 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 heshouldknow these things which he does not know. Happily for him,hisignorance is not as that of the public leaders of his generation.Theirconcept 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 thattheirconcept 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 governmentsinAmerica, accurately knew the status of the Americancitizen 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,inAmerica, 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 asimple 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 tograsp 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 abilityof that kind, exceptwhat 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 abilityof that kind, and has not received the grant of it directly from the men of the nation, where a government claims or exercises any abilityof that kind, without any grant of it, or by grantfromgovernmenttogovernment, 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 hadnotbeen theactualstatus 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 republicangovernment 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.” (1Ell. 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.” (1Ell. 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 governmentofthe people,bythe people andforthem 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 WestminsterLegislature. 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, 16Wall.36, at page 115.)
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, 16Wall.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 interferesor 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 Americansin 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 beingscouldknow 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 abilityof that kindto their respective governments? Theyacted 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,effectivelyand wiselyon such a subject, by assembling in convention” in their respective states. Long before Marshall voiced judicial approval of thisAmericanmethod of direct action by the people themselves, in matters in which onlythe peoplethemselves 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.” (3Ell. 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 abilityof that kindexcept 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 directaction 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 interferegenerallywith the individual freedom of Americans,asAmericans. In each of the thirteen American nations, the citizens of that nation had vested their own government with some abilityof 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 anunlimitedability 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 abilityof that kind onlyto a limited extent. They did this in strict conformity to republican principles.
For the many who do not know, it is well to stateclearly 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 citizensthemselveslimit 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 peoplethemselvesassemble and themselves enact each specific rule of conduct or law interfering with individual freedom. In a republic, it is always possible that the citizensmayassemble, 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 makingsuchlaws. 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 Republicwhich we know as America, whentheyconstitutedtheirgovernment. 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 abilityof 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 abilityof that kindto 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 thatthey 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 totheirlaw-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, hasanygovernmentanypower whatever, inanymatter or toanyextent, to make a valid command restraining the human freedom of the individualAmericanas 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 evershallhave abilityof that kindunless 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 delegatesfrom 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.