Weekly Indiana State sentinel. [volume] (Indianapolis [Ind.]) 1853-1861, 1856-12-04

| These abuses, expressions, the people of this
country determined 10 prohibit here they de
termined to be, in the language of some Of the
constitutions, sscure from their exercise upon
themselves or their posterity. That security
they designed should be perpetuated by their
constitutions. and particularly by the clause in
question.
In the great discussion of which we have
spoken above, proposition had been submit
ted, for the first time in the history of the world
thinks, Mr. Sparks, by Sir Henry Vane, that
% restraint be laid upon the Supreme power as
q FUND AMKNTAL CONSTITUTION" that it might be
d" bound up" so that " this great blessing (of
freedom of conscience) will hereby be so well
provided for, that we shall have no cause to
fear" Sparks Am. Biography, vol. 4, p. p.
262, 263.
Such was the object and intention of the fran
ers Of our constitution, in regard to natural
rights They designed the first section of it
as a fundamental provision, binding up the
supreme power. 1t was necessarily general
They could not look down the stream Of time
and see all the cases wherein it would be proper
for State government to exert legislative power
specify them and exclude all others, thus pro-
tecting the rights reserved ; nor could they an
lticipate all the various attempts that might be
made to invade these rights, and expressly pro-
hibit them. They did specially prohibit such
such as they had experienced But naming
such attempts did not exclude the prohibition
of others by the general fundamental provision
The State VS. Barbee, 3 Ind 255. Thomas VS.
The Board, Gc., 5 Ind 4. Further, we may say
that these restraints were intended to operate
upon the legislative power, though we suppose
that this will not be denied. Parliament had
most severely outraged the rights of America
The colonists "kuew it to be their most danger
Gus enemy" Bancroft, l3S II had enacted
laws in
Botta's Hist. %, 26. The Judges of England,
in answer to a question by Cromwell, Earl OF
Essex, had reluctantly said, that if parliament
should condemn a man to die without hearing
it would be valid. Hallam's Const. Hist. p. %.
Mr.. Jefferson urges as an objection to the con-
stitution of the u. S. the want of a bill of
rights.
In letter to Col. Humphreys, in 1859, he
says:
al am one of those who think it a defect, that
the important rights, not placed in security by
the frame of the constitution itself, were not
explicitly secured by supplementary declara-
ton There are rights which it is useless to
surrender to the government, and which the
governments have yet always been found to in
wade. These are the rights Of thinking, and
publishing our thoughts by speaking or wri
ting; the right Of free commerce the right Of
personal freedom"
ton of rights, as n supplement to the constitu
ton where that is silent, is wanting, to secure
us in these points. The general voice has legit-
mated this objection" Jefferson's works, vol
3, D. l3. The States in their several constitu
tions, obviated, as to them the objection. Such
declaration, Mr.. jefferson admitted, would
place check in the hands Of the Judiciary
/ Tuck. Life of Jefferson, 28l.
Having thus ascertained the intention Of the
/ 80 IN fba Int Of tho ~
so far as consistent with its language, to give
effect to it accordingly. The "mere demarka-
ton on parchment of the constitutional limits
is not sufficient guard against the encroach-
ments" Of tyrannical legislation. The early
history of Virginia establishes this and Of
Pennsylvania. In this latter State, in 1883, and
1884, council of censors assembled charged
with the duty of inquiring whether the con-
stitution had been preserved inviolate % and
they reported that it " had been fiagrantly VIC
lated by the legislature In variety of impor-
tsnt instances" Madison in Federalist No. %.
Liberties are nothing until they have become
rights-positive rights formally recognized and
lconsecrated. Rights, even when recognized,
are nothing so long as they are not entrenched
within guarantees. And lastly, guarantees are
nothing so long as they are not maintained by
forces Independent of them, in the limit of their
rights. Convert liberties into rights, surround
these guarantees to forces capable of maintain
ing them-such are the successive steps in the
progress tow ards a free government" Guizot
on Rep. Gov. 800.
I" The courts of justice are to be considered
the bulworks of a limited constitution" Fed
eralist No. 65. 1.-THE courts were designed
to be an intermediate body between the fpeo-
pie and the legislature, in order, among other
things, to keep the latter within the limits as.
signed to their authority" Ibid. and Leber
p. p. $50, PSI, 2e2.
We come TO the conclusion, then, that the
courts should declare void a law in violation
of this fundamental principle of the constitu-
ton, law in violation of the natural rights of
man. To be explicit. The courts cannot annul
an act of the legislature simply because it vio-
lates the fundamental principles of correct leg
slation but because it violates a fundamental
principle of the constitution Lieber Co.,
Ind. Rep. 81, So, SO. Kent 450, note. Mar
tin exparte Eng. (Ark.) Rep. 1873. The act
annulled according to the expression always
used touching the subject, must be unconsfu.
tonal
1t has been said, indeed, by high authority
that " there are certain absolute rights and the
right OF property among them. which, in all
free governments, must of necessity be practi-
ced from legislative interference, irrespective
of constitutional checks and guards" Blackf
ATT. And the dictum is supported by eminent
jurists and writer's of celebrity. American Law
Magazine vol. p. 3l9 (l843) and the cases
there cited. Junius, vol. p. 50 in dedication.
But this doctrine would not be admitted in
the English courts where there is no written
constitution, and cannot arise here, because, as
we have seen, our constitution does protect
these natural rights.
Again, it is sometimes said the courts may
pronounce an act void because not properly
within the scope Of Legislative power but this
is also by virtue of the constitution for that
instrument expressly declares that the powers
of government shall be divided between three
departments, the legislative being one, and it
expressly inhibits either from acting out of its
assigned sphere art. hence, the constitu-
ton, in fact, prohibits the passage of any act
by the Legislature not properly within the scope
of legislation.
We here take leave of THE topic, remarking
that as our system or polity was framed by pol.
iticians, using the word as a synonym of states
men, not of politicasters, we have necessarily
been led, in constituting it, to study and cite the
opinions Of that class during the period of its
formation. The review has considerably ex-
tended this opinion and the propriety of the
course is justified in the language of a section
of the first constitution of Ohio art. 8, Sec Is Il
20 That a frequent recurrence TO the fundament-
d principles Vi civil SO'eiDneub 10 absolutely
necessary to preserve the blessings of liberty"
And per Macintosh Supra. Perhaps the
only expedient that can be devised by human
wisdom to keep alive public vigilance against
the usurpation of partial interests, is that of
perpetually presenting the general right and
the general interest to the public eye"
If it be said that the principles asserted will
sometimes thwart the will Of majority, we
answer, it is admitted but what then ? Ours
is not, as were, TO some extent, the ancient re-
publics, government directly of masses and
msiorities, but is;
1. A government by representatives.
2. With limited powers.
3. With those powers divided among depart
ments.
4. With one department having the ultimate
right to decide upon the respective powers of
all, and to annul action beyond the limits Of
those powers. 1t is, in short a government
within a constitution. The majority, here,
cannot do everything. much less, plurality |
which elects our leOislature The maturity rulee