Magna Charta: The Foundation of American Liberties
by John A. Marshall
Personal or civil liberty is that boon which man values most among the inestimable gifts of God, his Creator. In the proper enjoyment of it, he stands forth in the image of his Maker, self-reliant and strong. Take from him this inherent natural right — through the forms of government or law — by subjugation or force — by tyranny or prerogative — and he is a mere machine, worked by the hand of power.
It is equally true that the prosperity and superiority of the State or Nation having the elements of personal or civil liberty or freedom incorporated in the formation of the society which constitutes it, is in proportion to the extent of the civil privileges, immunities, and franchises. When a State properly enjoys liberty, its progress is the more rapid and stable. When the liberties of the people are abused and degraded, the State retrogrades.
The proper uses of liberty, in a free government where emulation receives encouragement and support, stimulate the citizen, and produce culture, refinement, art, science, invention, learning, eloquence, oratory, statesmanship, and religion, in the highest degree. No other form of government advances the virtues and interests of the people to such superiority and pre-eminence. It invites competition — it is the lever of progress — it is the friend of ambition. Hence, when the whole people — like the individual man — are inspired with a pure, patriotic, and instinctive love of liberty, the State be great, illustrious, and mighty.
The citizen of a free State has no superior, in point of liberty or in point of law. The humblest citizen is entitled to the same rights and privileges, and the same protection, to which the highest magistrate is entitled. The law in a free government is no respecter of persons, nor does it make any distinction, in so far as liberty is concerned.
In a free government, the Constitution throws around the citizen certain safeguards or protections to his liberty. It gives him the right to trial by jury. It secures him against unreasonable searches and seizures. It protects him against arrest, except on oath made by a responsible person. If maliciously arrested or falsely imprisoned, he has his redress or action against the informant or magistrate for trespass or false imprisonment. "Every restraint upon a man's liberty," says Kent, "is, in the eye of the law, an imprisonment, wherever may be the place, or whatever may be the manner in which the restraint is effected." Even words may constitute an imprisonment, if they impose a restraint upon a person, and he submits.
He, then, who, possessing the power, robs the citizen of his liberty, even for an hour — yea, for a moment — without the sanction of law, or deprives him of the right to all the immunities of the law, commits a crime against the interests of the State, which time cannot expiate. By his example, the people are made reckless of their liberties and their allegiance to the State. Blackstone says:
Of so great importance to the public is the preservation of personal liberty, that, if once it were left in the power of any, the highest magistrate, to imprison arbitrarily whoever he or his officers thought proper, there would soon be an end of all other rights and immunities. To bereave a man of his life, or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism as must at once convey the alarm of tyranny throughout the whole kingdom; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary power.
The highest aim of the magistrate in a free government should be to protect and defend, and not destroy, the liberty of the citizen. Even when the State is in danger, it is the province of the Legislature, and not of the magistrate, to protect it against external or internal foes.
In a free and elective system of government, as in the United States, where a written Constitution has been adopted, the different branches of government are so well marked out and defined, and the duties and offices of each are so independent and distinct, that under no possible circumstances can usurpations in any, or the encroachments of one upon the other, be excused. Any usurpation whatever, in either branch, leads to anarchy, demoralization, and finally disruption. The blow may not be aimed at, but it strikes into the very heart of liberty.
Hence the absolute necessity of keeping the liberties of the people pure and immaculate, and free from infringement, by the makers, the administrators, and the expounders of the laws.
In order to protect and increase the power and prolong the independence of the State, the liberties of the people must be fostered, guarded, and secured. "It" (liberty), says Burke, "is not only a private blessing of the first order, but the vital spring or energy of the State itself, which has just so much life and vigor as there is liberty in it."
To protect liberty, the streams of legislation, administration, and justice must be kept clear, from the fountain-head even unto the mouth. Usurpations and encroachments upon the rights and liberties of the citizen are as deleterious to the tranquility and welfare of the State as the unbridled, unrestrained, and licentious abuse of them by the citizen.
These prefatory remarks are made merely to remind the general reader of his constitutional rights. Of late, the civic rights of the citizen have been abridged. It remains to be seen whether he will maintain them. The permanence and stability of the government rest entirely with the citizen. It is for him to say how long free government will exist in our country.
Although free government may be traced back to a period of about three thousand years, it is not my intention to allude to the experiments in establishing it beyond the adoption of Magna Charta, in which may be found the vital principles on which it is based. The political rights which we enjoy under our Constitution may be said to be derived directly from that document.
Yet, it is proper to say here, that the principles of liberty enunciated and the privileges granted by the Magna Charta, many of which had been digested in a code of laws by Alfred, were not confined exclusively to the Anglo-Saxons; for almost at the same era, upon the election of King Christopher II. of Denmark, he was obliged to sign a charter granting nearly the same privileges and immunities as were contained in the Magna Charta, among which were that no man should be imprisoned, or deprived of life, liberty, or property, without public trial and conviction according to law; and that no law should be made or altered without the consent of the Parliament, composed of the best men of the kingdom, to be held annually by Wyborg.
And it may be said, that in Northern Europe, as well as in England, at the time of the granting of the Great Charter, the German tribes generally, and the Danes, were inspired by the same spirit of liberty which was enkindled in the hearts of the Anglo-Saxons, their descendants.
From the time of the granting of the municipal privileges and personal rights, as contained in Magna Charta, signed by King John on the 15th of June, 1215, but which was not really established until "after the contests of near a whole century," for during that time, "it is computed," says Hume, "that about thirty confirmations of the charter were at different times required of several kings, and granted by them in full Parliament," the people of England have been jealous of their personal liberties and watchful of their civic rights.
Since that period, the genius of the English people has been strongly and invariably in favor of liberty, while royal prerogative, until the accession of William and Mary, inclined as violently towards arbitrary power.
The Magna Charta laid the foundation for a Constitution, which has engrafted in it all the attributes and securities of personal liberty, and stands a monument of enlightened statesmanship, worthy the pride and admiration of the English people.
After the expulsion of the kings, the Romans, being careful of their liberties, erected and dedicated a temple to the Goddess of Liberty, and it was then esteemed an honor to call oneself a Roman citizen — Civis Romanus.
In our own country, there was a time when the proudest appellation a man could bear was that of American citizen. "I am an American citizen," implied liberty and safety — protection and justice. Then, the national shield was, indeed, a shield with arms — a shield which defended the citizen against every act of tyranny and usurpation — a shield which guarded him on land and sea, at home and abroad. Then, personal liberty was a citizen's birthright. Then, free speech was unshackled. Then, Mr. Webster could exclaim:
It [free speech] is a homebred right — a fireside privilege. It has ever been enjoyed in every house, cottage, and cabin in the nation. It is not to be drowned in controversy. It is as undoubted as the right to breathing the air and walking on the earth. It is a right to be maintained in peace and in war. It is a right which cannot be invaded without destroying constitutional liberty. Hence, this right should be guarded and protected by the freemen of this country with a jealous care, unless they are prepared for chains and anarchy.
What are the protections of the law now?
When the arteries which convey the life-blood from the heart of the Constitution to all parts of its body once become paralyzed, the most skillful treatment can never restore it to its original vigor and healthful condition. A partial recovery may be effected, but the disease remains.
Oppressive and illegal acts by one Administration may be adopted as established precedents for similar encroachments by succeeding ones; and who can gainsay the right? Surely, not the people, when they not only encourage, but are accessories in the wrong. Therefore, without a proper and conscientious regard for the majesty of the law, and the observance of personal rights, there is no security for permanence in free government.
From the organization of the Government, until the administration of the late Mr. Lincoln, we know of no case in which an American citizen was arrested without warrant, imprisoned without charge preferred, and released, after months and years of incarceration, without trial; although he who will take the trouble to turn over the leaves of American history will discover that, in many cases, there was not only imaginary, but real "disloyalty" among citizens, dangerous to the common interests of the Government, during former Administrations.
Educated in the principles of republicanism, intelligent beyond comparison, and heretofore governed by conservative magistrates, whose wisdom, experience, and characters commanded respect and confidence — a people who had always supported the Government with alacrity, unselfish devotion, and fidelity, was unprepared to be obliged to submit, without redress, except by physical resistance, to an arbitrary and tyrannical prerogative, unrestrained by law, reason, or justice.
The Administration of Mr. Lincoln having been ushered into existence under the banner of universal freedom, it was to be expected, from the enlightened condition of the age, and the conservative and patriotic disposition of the people in the "loyal" States, that the Government would be administered in accordance with the promised reforms. In this, however, the people were disappointed. Legislative enactments were unrestrained by constitutional provisions. The President assumed quasi plenary power, to make and enforce laws without the interference, assistance, or aid of the legislative or judicial branches of Government; and, in a word, drew around his individual person — all the powers of government, Municipal, State, and National, which he enforced through his obsequious Secretaries. Consolidation of interests, and centralization of power, were complete. The Government was the President — the President was the Government.
But we forbear to criticise. We present facts. Let them speak. Let the people answer. No words we could use would bring relief to the harrowed feeling of, or redress the wrongs perpetrated upon, thousands of unoffending citizens, by their unwarranted incarceration in American Bastiles during the Administration of the late President Lincoln. We contemplate the cruelties, oppressions, persecutions, and imprisonments, committed during that long night of political despotism, with alarm. We shudder for the future of the country, when we take a retrospect of the late past.
If a truthful presentation of the facts, as contained in this volume, will in anytime prevent in the future a repetition of the wrongs and crimes committed against the rights and liberties of the people, in the name of liberty, then our highest ambition has been satisfied. To prevent flagitious wrongs from being committed against the constitutional rights of individuals is the duty of every good citizen in a free State. Liberty is too valuable a privilege, and, as we have endeavored to demonstrate, has been to costly an inheritance, to be bartered away for the gratification of personal or political animosity.
This article was extracted from John A. Marshall, American Bastile (Philadelphia, Pennsylvania: Thomas W. Hartley and Company, 1881). Click HERE to order this book.