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The Supreme Court has granted a writ of habeas corpus and ordered that a hearing be had upon the petition of John M. Kelley to regain possession of his three minor children.
Is this possible? Shall we believe our eyes? Has this unnatural parent, in utter disregard of every reasonable anticipation, persisted in demanding children once properly and lawfully "committed" to the Board of Lunacy and Charity, and committed by them to a superintendent, to be committed by him to a keeper, persisted in trying to regain possession of these wards of the State, who have no earthly relation to him than that of being his own? Why "complaint was made under oath" two years ago that these children lacked salutary control, and they were thereupon committed. How salutary their surroundings have been since then every one knows, because the intelligence, efficiency, and virtue of State institutions is notorious. But lest a dim memory fail to reflect the necessary facts, take this corroboration from the able and eminently trustworthy Personal Rights Journal (London):
A Victim to State Education. On the 15th ult., Mr. Coroner Graham held an inquest, in the Police Court, Jarrow, on the body of Mary Bryce, eight years of age, who died in Stanley Street on the 11th inst. Catherine Bryce, an elderly sister of deceased, said her sister had been ailing for some time, and was unable to attend school. The school-board officer had sent several notices to her mother about deceased not going to school, and a fortnight last Tuesday witness took the child to the school committee to show that she was ill. No one examined the child; but the attendance officer told the committee that she was well enough to go to school and ordered her out of the room. In response to a summons, witness went to the court on Thursday, the 4th inst., as neither her mother nor sister was able to attend. She told the magistrates that the child was too ill to attend; but the attendance officer said it was not true, and that the child was quite able to go to school, and a fine of five shillings and costs was imposed. Dr. Whamond deposed to having attended the child for some time. She was suffering from an affection in the head causing running from the ears. On the 6th inst. he got a workhouse order to attend the child. She was then suffering from severe affection in the head, from which she died on the 11th inst. He attributed her death to affection of the brain accelerated by compulsory attendance at school. The coroner, in summing up, said he felt assured that the inquiry would be useful, both to school-board members and others. A verdict was given in accordance with the medical evidence.
This will do for the present. An occasional reference may remind us at opportune moments what one of the accompaniments
of governmental regulation is. I wonder if Mr. Higginson will call that barbarous — or can the people "acting in their collective capacity," to wit, a school-board officer, a school committee, and an attendance officer, do no wrong?
Having reverted to the consideration of what (as the editor of Schools. the Personal Rights Journal cleverly puts it), "in oblivion of the contradiction involved in the terms, it is fashionable to call compulsory and free education," the origin of the thing in this country may be briefly noted. It originated in Massachusetts, of course, as the inhabitants are still proud to reflect. In 1647 the Legislature of the Colony enacted the law which ordered every township of fifty families to set up શ "free" school, the reason recited being to circumvent Satan, one of whose chief projects has always been "to keep men from the knowledge of the Scriptures, as in former times, by keeping them in an unknown. tongue, so now in these latter times by persuading from the use of tongues," etc. Some towns had already established schools of their own accord, probably for the same reasons, but at any rate as part of the ecclesiastical system of government which prevailed. This is the system which has spread over the whole of the United States. And, little as the churches tend to establishment and aggressiveness here, the public schools are nevertheless the source of animosity aud chronic ecclesiastical strife. Whatever excuse there may have been for the colonists of 1647, and, considering the age, as well as the uniformity of the population, they need no apology, there is no excuse now for perpetuating the system. The public schools are, no doubt, maintained with good intentions, although the revival of the religious strife constantly shows how easily good intentions are passed over; but, even at their best, good intentions are not sufficient for this world.
A CENTURY OF RETROGRESSION.
A people establishing a form of government naturally consider what purpose they wish the government to fulfil. So we should expect a people sustaining a government to inquire occasionally whether the government they are sustaining is fulfilling the functions for which it was originally
designed, or those which the people would at the present time wish to intrust to it. When the Constitution of the United States was formed, six blessings were enumerated which, it was hoped, the Constitution, and the government founded thereon would secure: To form a more perfect union, Establish justice, Insure domestic tranquillity, Provide for the common defence, Promote the general welfare, and secure the blessings of liberty to ourselves and our posterity.
The first four are evidently included under the fifth, while at the present day there is a grave question whether the last is not to some degree inconsistent with it. At any rate, the justification for every abridgment of liberty is that the general welfare demands it. Our ancestors certainly did all in their power to secure the blessings of liberty for us, their posterity, but we seem likely to afford another instance showing that a generation which will not strive to preserve its liberty cannot retain that liberty. One of the chief objections brought against the Constitution when it was presented to the people for ratification was that it did not define the rights of the people clearly and explicitly. Massachusetts, on ratifying it, proposed sundry amendments, and her example was followed by other States, with the result that ten articles were added within three years.
In the century during which the Constitution has been the supreme law of the land, we have contrived to evade some of the rights explicitly reserved to the people. For example, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof"; but, by making a distinction between a religion and a superstition, the Supreme Court has enabled Congress to enact laws hostile to one form of religion which has many adherents within our borders. How far this principle will be carried of course depends upon the circumstances that may arise; but it is plainly applicable to almost any extent; for it is the easiest thing in the world to define superstition so as to include
any form of religion to which we have an antipathy. We pride ourselve upon having reached a degree of civilization at which we feel no desire to persecute on account of religious opinion, notwithstanding our treatment of the Mormons; but it is very doubtful whether this is not because our own religious opinions seem to us less certain, and their prevalence, less important than was the case two or three hundred years ago. Again, the power to abridge the freedom of speech, or of the press, is distinctly denied to Congress; but during the last session a law was passed seriously interfering with the liberty of the press, and seizures of newspapers and documents, and arrests of editors are reported almost daily, as if this were Germany, or Russia, or any other despotically-governed country. The case is so remarkable as to be worth dwelling on for a little. When the power to establish post-offices and post roads was conferred upon Congress by the framers of the Constitution nothing was further from their thoughts than to grant the power to exercise also a censorship of the press. And yet this is what it has in effect amounted to. In extending its own means of communication, the Government has to discourage the establishment of other means. As a consequence, the dissemination of opinions is largely dependent upon the postoffice. The assumption, then, by Congress, of the power to discriminate, to decide that it will permit certain kinds of printed and written matter to be transmitted through the mails, but not other kinds, amounts to a moderately effective censorship of the press. The most tyrannical governments, the Inquisition itself, have always been tolerably indifferent as to what opinions a man might write down for his own amusement; it was only when he actively disseminated his opinions that he aroused their antagonism. Last winter the majority in the House of Representatives introduced the practice of cutting short the objections which might be urged against a bill in that body; suppose Congress, in its wisdom, should decide that
criticisms of its actions were objectionable, and should forbid transmission through the mails of all newspapers containing criticisms upon measures which had become law. The principle laid down in the laws regarding lotteries is broad enough to cover such a case. Probably a majority of the people would now perceive the tyrannical nature of a law prohibiting the use of the mails to those criticising the Government; but so, a hundred years since, it may be safely asserted, would the people have perceived the true nature of the Anti-Lottery law.
In granting Congress the power to "lay and collect taxes, duties, imposts, and excises," for the purpose of paying debts, and providing for the common defence and general welfare, the intention doubtless was to permit rather a wide discretion; but no man in 1787 could have dreamed of the abuse of the taxing power that was to prevail periodically till the Civil War and constantly, with rapid acceleration, after its close. That the power of imposing duties. should be used to take money from the pocket of one man and put it into that of another certainly was not contemplated by the members of the Constitutional Convention. They provided that all duties should be uniform throughout the United States; but, in order that the burden might be equally divided, they should have been at least three times as high in Pennsylvania as in Virginia.
The history of England is sufficient to show us that there is a close connection between the taxing power and popular liberty. To take more from the people. than is required for the economical performance of the essential functions of the Government is to restrict their liberty. If a man in Wisconsin is forced to help pay for dredging the Merrimac he is aggressed upon: a certain portion of his income he is not free to spend as he chooses. The same holds true if he is compelled, directly or indirectly, to help support manufacturing establishments in Pennsylvania, or to
pay part of the freight upon goods sent from New York to South America.
One would have supposed, from the history of the country, that the last power of which an abuse would be attempted, and one the abuse of which would be soonest resisted, would be the taxing power; that the liberties of the people as far as they were connected with taxation would be well guarded. But America has done a great deal in the line of falsifying predictions made by prophets, both hopeful and the reverse. Perhaps it would not even be safe to foretell that the taxing power will be abused here in the next century as it has in the past.
We have enumerated three respects in which the liberties of the people have been aggressed upon by the General Government in ways not contemplated by the founders of that government, or to a greater extent than was contemplated: religion, the press, and property. Others might be named, but these are sufficient to raise the question whether the people at present have different views from the framers of the Constitution as to what purposes the General Government ought to subserve. The answer must probably be "yes," though there is a large number of citizens who are not convinced that the continual extension of the powers of government is a good thing. The founders of our Government wished" to form a more perfect union"; we have formed a sufficiently close union, though hardly that union offree and independent States" which they had in mind. They wished to insure domestic tranquillity; to us there seems now no danger of the domestic tranquillity being disturbed. They found it difficult to provide adequately for the common defence; the sum we need to expend for this purpose is insignificant. The establishment of justice seems to us a much less important matter than it seemed to them. They wished to preserve the blessings of liberty to themselves and their posterity; we have discovered, or think we have, that the best way to secure the blessings of liberty is to
take away liberty from the people as fast fully exert over individuals. Those powers as they can be got to surrender it.
were strictly limited by the Constitution, but the fashionable opinion now is that they ought to be limited scarcely at all; that it is right for the Government to do almost anything which a majority of the citizens are in favor of its doing.
There remains promotion of the general welfare, and in eagerness for that we shall not, I suppose, yield to our ancestors. But there is a difference of method: they were willing to secure it by insuring domestic tranquility, providing for the common defence, establishing justice, and guarding liberty; we have discovered a more excellent way, namely, taxation and regulation.. If only a sufficiently large part of the people's income is taken from them and expended for such purposes as Congress shall deem fit, if another still larger portion is taken from them to swell the profits of persons engaged in certain industries held to be specially praiseworthy, and if their lives are inspected and regulated to the proper degree, the general welfare of the country will be perfectly assured. An instructive An instructive illustration of the contrast between the simplicity of a century ago and the complexity of to-day may be noticed. The powers delegated to Congress by the Constitution are expressed in two pages of that instrument; nearly seventeen thousand bills were introduced at the last session, several of them many times longer than the whole Constitution. Manifestly, at this rate, one Congress will soon be utterly inadequate for promoting the general welfare.
The difference between our treatment of the questions regarding religious freedom, freedom of the press, and taxation, and the treatment these questions received in the Constitution seems to imply a different view of the purposes for which government is organized and sustained. I would not be understood as asserting that the freedom of the press or of religion has yet been interfered with to any very serious extent; but in the interference which has been made principles have been established which are likely to justify almost any amount of interference in the future. The difference between the views of Government which prevailed at its foundation and those which prevail now is as to the power it may right
The history of the controversy as to whether sovereignty is properly limited or unlimited is curious, but not without parallels. While governments were in the hands of kings, advocates of popular rights maintained that there were limits which governments could not rightfully transgress, and advocates of monarchy maintained that there were no such limits. Now that the former have won the battle and the sovereignty is vested in the people, they have adopted the opinion of their opponents and stoutly uphold the doctrine that the authority of the sovereign, from its very. nature, must be unlimited. It must be admitted that this tenet as held by them appears less consistent than as held by their adversaries. One who believed the king to be God's vicegerent on earth would naturally have great difficulty in assigning any limits to his authority; but it would hardly be expected that one who denied this would maintain that a popularly elected body ought of right to be supreme.
It is indeed a difficult question to determine by what right one man should take it upon himself to be lord and judge over another, or by what right forty millions take it upon themselves to be lords of thirty millions.
Three hundred years ago Richard Hooker
"To fathers within their private families Nature hath given a supreme power, for which cause we see throughout the world, even from the first foundation thereof, all men have ever been taken as lords and lawful kings in their own houses. Howbeit over a whole grand multitude having no such dependency upon any one, and consisting of so many families, as every politic society in the world doth, impossible it is that any should have complete lawful power but by consent of men, or immediate appointment of God; because, not having the natural superiority of fathers, their power must either be usurped, and then unlawful; or, if lawful, then either granted or
consented unto by them over whom they exercise the same, or else given extraordinarily from God, unto whom all the world is subject."
Modern research has shown that fathers have not always been supreme in their families from the foundation of the world, but it has not been able to find any just reason for the general assumption of authority by some men over others except the consent of the governed. Now, suppose the majority in any country wish a certain public work performed, a canal built, say, what right have they to compel the minority, against their consent, to contribute to the work? The same right, evidently, that a king would have to compel the nation to do this work, if he was able, but what additional right? According as we answer this question one way or another we shall be ready to approve or disapprove the most of the seventeen thousand bills which were introduced at the last session of Congress.
There are three possibilities as to the right of the majority to control the nation. by force; it may have a right to control in all respects, or it may have a right to control in some respects and not in others, or it may have no right to control at all. The first of these alternatives has been adopted in England, and the second in this country, though we have been advancing towards the English ideal. The third possibility has only recently come to be debated, and seems absurd to nearly every one. In England an act of Parliament is supreme, and is enforced until repealed. In this country the Supreme Court has never hesitated to declare an act of Congress unconstitutional, and no act has ever been enforced after having been declared unconstitutional by the Court. In England the theory has triumphed that men have no rights, natural or other, until rights are conferred upon them by law; this government is founded on the theory that men have certain natural rights which governments are instituted to protect, and that when a government ceases to protect these
rights it should be altered or abolished. It is a corollary from the English theory that the minority has no rights against the majority, from the American theory that the minority has such rights.
The contrast between English and American legislation has been less marked than one would have expected. Parliament has gone further than Congress in passing laws. in disregard of vested rights, and in socialistic legislation generally; but many laws of this kind which Congress has had no power to enact our State Legislatures have adopted. The reason why the legislation of the two countries does not present a stronger contrast is largely due to the fact that we have been moving towards the English standpoint.
Of course, no constitution can protect the minority against the majority in any case about which the majority feels strongly; but the latter has, in the course of our national history, been restrained from many acts of tyranny about which it did not feel strongly enough to violate the Constitution, or even to compass the somewhat cumbrous process of amending it. In some instances it has been evaded, or has not proved adequate, as in the cases of religion, free speech, and taxation, mentioned before. It is to be regretted that the American people seem inclined to abandon their theory of government for the British theory before the former has been clearly proved to be false; and it certainly has not yet been proved to be false. Both theories cannot possibly be right: either the government of the majority should be limited, or it should not; or, to put the case in another way, either the individual has some rights which the Government cannot properly deprive him of, or he has not. The nation which decides this question wrongly will lay up for itself great trouble; for, as of life in general, so of social life, there are certain fundamental laws, which far antedate those on the statutebook, and unless these laws are conformed to in some degree social life is impossible; unless they are conformed to in a consider