FEDERAL USURPATIONS BY HON. JOHN SHARP WILLIAMS, All governments, whether free or not, which have existed and fallen have fallen by weight of political machinery. There has come a time in their histories when government and its machinery was the first consideration, and man and his individuality-the support of government-the second. It is well always to keep in mind the primal fact that while government is necessary and ought to be made good, it is yet, after all, a necessary evil growing out of the vices of human nature. It is a means to an end, which end is the happiness and freedom and development of the individual man and woman; and is never an end in itself. This idea was carried further in the formation of our federal government than in that of any other government. In a certain sense indeed the federal government is not the government of these United States at all, but is a piece of central machinery organized to hold together in union the several governments of the several United States and protect them by union from mutual aggression and from aggression by foreign powers. Federal usurpation of power is not a recent growth. It was a necessary concomitant of the rule of the old federalists. Hamilton and men of his way of thinking, delegates to the constitutional convention, strained every effort to procure a stronger, or as they would have said, a more stable government than that which was as a matter of fact reported to the people for adoption in the original constitution. Though defeated in the convention in many of their essential purposes it was but natural that when the constitution was submitted to the peoples of the respective states, that they should have become the most strenuous advocates of its adoption, because though giving birth to a government not so strong nor so centralized as they desired, it still inaugurated one very much more to their liking than the old confederation. They soon found that the objections to its adoption were not based on its being too weak a bond of union, but were precisely the contrary. They therefore neces sarily based their advocacy upon the plea that it did not interfere with the real rights and sovereignty of the states, within their spheres; that the states would still have such rights as were not delegated expressly or by proper implication, and in their advocacy they emphasized how little authority and power, comparatively, the new federal government would have. Notwithstanding this fact, the discontent with the constitution as it came from the hands of its framers was so great, upon the ground that it did not sufficiently safeguard the inalienable or natural rights of the individual and the reserved rights of the states, that it was adopted only upon the understanding that the first ten amendments should be added to it. They were immediately added after the adoption of the original instrument. If you will dispassionately take up our fundamental law and study it without the first ten amendments, you will see that it would have launched into existence the least democratic of all governments now existing amongst English-speaking peoples. As originally framed, there was no express guarantee of the freedom of the press, freedom of speech, freedom of assembly, trial by jury or habeas corpus-in fact, most of the muniments that had been secured by war and legislation to the race before it crossed the Atlantic were unprotected, whether these muniments had been embodied in the habeas corpus act, in the bill of rights, or in some other instrument. George Washington was not really a member of any political party. He had the idea that government with free institutions could be carried on without parties, and deplored their existence as factional. At the beginning of his administration this idea was his guide. Later on, after Jefferson had retired from the cabinet, and Hamilton became unrestrained adviser, the administration did take on a somewhat federalistic hue. When John Adams came in, with the real federalists in supreme power and full control, then the note of federalism in the shape of federal usurpation of power began to assert itself. The great usurpation of federal authority in the alien and sedition laws was an illustration of the legislative and executive side of the government. When Adams was retired, he left the bench in control of federalist judges, the greatest, most ingenious, as well as perhaps the most sincere of them all being Illiad of all our woes, in so far as our inability properly to control corporations is concerned, and in so far as judicial construction has brought about federal usurpation, naturally followed. The decision giving the right to the federal government to establish and maintain a national bank, for which no authority could be found in the organic instrument, except by fiction of law, was another result of a federal judge's attempting to construe into it something sought in the convention to be embodied and the granting of which had been refused. Every governmental abuse is based upon some plea or pretext, and the usurpation of power by government is generally based upon "necessity," the "tyrant's plea." This real or fancied necessity generally grows out of war. This has been especially true with regard to legislative and executive usurpations by our federal gov ernment. Amidst the universal plaudits which he has received and deserved there are few people left ungracious enough to give sufficient emphasis to the part which Abraham Lincoln and his cabinet had in changing the spirit, if not the form, of the American government. The doctrine of "war powers" came into being, and after war had passed and peace had come the usurpations following from the exercise of the so-called war powers furnished precedents for their continuance and for other usurpations like them. It has always been said inter arma leges silent, there are undoubtedly certain powers which have been recognized to belong to all governments while forces are operating in the field and in the enemy's country beyond those which are conceded to the same governments at peace and at home. During the war between the states the executive first asserted and Congress afterwards attempted to confer upon the executive the right to suspend the privilege of the writ of habeas corpus not only in the territory which was within the boundaries of the confederacy, but within the states which had remained faithful to the Union, and which did not constitute a field of war. Things went so far that the privilege of the writ of habeas corpus was suspended on the order of a lieutenant-general acting under general authority of the President. This in spite of the words of the constitution. upon the subject and the uniform dicta of text books and decisions The Secretary of War and the Secretary of State on bare orders based upon no affidavit even, much less indictment, arrested and confined men within the loyal states and spirited them off to prison. Federal marshals and police did the same thing. All this, too, prior to the act of March 3, 1863, whereby Congress attempted to confer upon the President the power and the right to suspend the writ of habeas corpus, a power vested by the constitution according to all judicial construction in Congress alone. Men were convicted of murder and treason without a jury trial. Under a proclamation of the President amongst the classes to be thus treated were those who "magnified the resources of the enemy," those "inflaming party spirit among ourselves." It seems almost incredible now to believe that men could have been taken out of their beds at night and carried away to prison, without even affidavits, by ignorant marshals who determined for themselves the question whether or not those seized and imprisoned were guilty of disloyalty, especially when disloyalty was defined in such vague terms as "magnifying the resources of the enemy," "underrating our own," or "inflaming party spirit amongst ourselves." In December, 1866, in the case of ex parte Milligan,' the Supreme Court pronounced the proclamations of the President unconstitutional and the act of Congress so, except when "confined to the locality of actual war," and not elsewhere, and to places "where the courts are not open." There are those who believe that the branch of the government most guilty in the field of federal usurpation is the judiciary. This is not true. Upon the whole the courts have been a bulwark of protection for the natural rights of the individual and the reserved rights of the states. Judicial usurpations, which have been successfully accomplished have not been a tithe of those which have been unsuccessfully attempted by the federal legislature and the federal executive. The Ku Klux act which would have carried the federal authority into every man's home within the states in the enforcement of criminal law, the civil rights act, which usurped to the general government nearly all of the police powers of a state, and the control of the social affairs of the citizen, are illustrations of attempted federal usurpations set aside by the court. During the period immediately after the war between the states Congress fought most viciously against the courts, frequently taking away from them jurisdiction on the subject matter, or attempting by acts of Congress, and sometimes successfully to prevent appeals to the Supreme Court of the United States. A book might be written, and a very interesting one too, upon usurpations flowing out of the Civil War and out of the supposed "necessities" of a reconstruction of the Southern States. Some of the usurpations that owe their real existence to the Civil War still remain to plague us, for example, the legal tender case. The constitution deprived the states of the power to emit letters of credit and issue paper currency, a power which was inherent in their sovereignty, but which had been found to be greatly abused. Hamilton himself contended that not only was this power not granted to the federal government, but that in spirit it was prohibited to it. Nobody ever did or does now doubt the right of the government to issue a note as evidence of indebtedness when it has not the money wherewith to pay. But nobody up to the Civil War had ever, for one moment, dreamed that the government had a right to levy a forced loan upon the people by making its notes a legal tender for the payment of debt. This legacy is not justly attributable to the judiciary, but to the President and the Senate. You are familiar with the manner in which this result was arrived at. After a first decision by the court declaring the legal tender act unconstitutional, the addition of a new judge to the number on the bench and the appointment of another judge to fill a vacancy on the old bench caused by death accomplished a reversal.It requires no imagination, but a plain view of the field only, to realize what an immense capitalistic and centralizing influence the judicial construction into the constitution of this power which was never granted, to wit, the power to make of government notes a legal tender to take the place of gold and silver has vested in the federal government. John Marshall in the case of McCullough against Maryland had early in the history of the country upheld the power of the federal government to charter a national bank of issue, although a proposition in the constitutional convention to confer such power had been expressly offered and expressly voted down. The opinion in the case upheld the bank as a "fiscal agency" of the government, and as such it was declared that it could not be taxed by a |