The position of the American Judiciary is well illustrated by the views expressed in a recent case decided in Wisconsin, State v. Kreutzberg. "In this case we are confronted with that gravest of sociological questions: How far, consistently with freedom, may the rights and liberties of the individual member of society be subordinated to the will of the government? That question has been at war from the very first is the law of the people consented to by them through their constitutional representatives. Lord chancellor-Is your majesty willing to take the oath? Lord chancellor-will you solemnly promise and swear to govern the people of this United Kingdom of Great Britain and Ireland and the dominions thereto belonging according to the statutes in parliament agreed on and the respective laws and customs of the same? The king-I solemnly promise so to do. Lord chancellor-Will you to the utmost of your power cause law and justice in mercy to be executed in all your judgments? The king-I will. Lord chancellor-Will you to the utmost of your power maintain the laws of God, the true profession of the gospel and the Protestant Reformed religion established by law, and will you maintain and preserve inviolably the settlement of the United Church of England and Ireland, and the doctrine, worship, discipline and government thereof, as by law established within England and Ireland and the territories thereunto belonging, and will you preserve unto the bishops and clergy of England and Ireland and to the churches there committed to their charge all such rights and privileges as by law do or shall pertain to them or any of them? The king-All this I promise to do. The proclamation by which the death of the queen and the accession of Edward VII. is made public is issued through the prime minister and the archbishop of Canterbury, with the sanction of the privy council and reads as follows: "Whereas, It has pleased the Almighty God to call to His mercy our late sovereign lady, Queen Victoria, of blessed and glorious memory, by whose decease the imperial crown of the United Kingdom of Great Britain and Ireland is solely and rightfully come to the high and mighty Prince Albert Edward. We therefore, the lords spiritual and temporal existence of any form of government. For many centuries, while debated as an ethical and philosophical question, it was resolved in each instance by force or by the ability to exert force. A little more than a century ago the attempt was made by the American people to define the limits by written contract, and to withdraw their decision and vindication from the arena of physical strife and transfer it to the peaceful form of the judiciary" (69). § 121. The right of expatriation allows the constant exercise of assent or dissent. "Very plainly, then, it is essential to the American doctrine of consent to hold that every citizen shall have a right at any time to expatriate himself (70). How can the consent of the governed be in any sense implied if the citizen is coerced to remain a member of the state through all the changes which its of this realm, being here with those of her late majesty's privy council, with numbers of other principal gentlemen of quality, with the lord mayor, aldermen and citizens of London, do now hereby with one voice and consent of tongue and heart publish and proclaim that the high and mighty Prince Albert Edward is now by the death of our late sovereign of happy memory become our only lawful and rightful liege Lord Edward, by grace of God King of the United Kingdom of Great Britain and Ireland, defender of the faith, to whom we acknowledge all faith and constant obedience, with all hearty and humble affection, beseeching God, by whom kings and queens do reign, to bless our royal King Edward with long and happy years to reign over us." 69 State v. Kreutzberg, 114 Wis. 530, 91 American State Rep. p. 935. 70 "Prima facie, and as a general rule, the character in which the American antenati are to be considered will depend upon, and be determined by, the situation of the party and the election made at the date of the Declaration of Independence, according to our rule; or the Treaty of Peace, according to the British rule. But this general rule must necessarily be controlled by special circumstances attending particular cases. And if the right of election is at all admitted, it must be determined in most cases by what took place during the struggle, and between the Declaration of Independence and the Treaty of Peace. To say that form of government may undergo, whether with or without his approbation (that would be submission). It is clear that in any such case he may remove himself and his property to any country he chooses, and he must be allowed reasonable time to make his election. This course was adopted at all periods of the American Revolution. All persons, whether natives or inhabitants, were considered entitled to make their choice either to remain subjects of the British crown or to become citizens of one or other of the United States. This choice was necessarily to be made within a reasonable time" (71). The majority of a colony, upon assuming to be an independent state, did not assume, against the will of the minority of the inhabitants, the right to make them members of the state. In order, therefore, to make such persons members of the state, there must be some overt act of consent on their own part to assume such a character, and then, and then only, could they be deemed to have determined their right of election. The consent of each individual could in no other mode be practically ascertained (72).. § 122. All political action was taken in the name of the people. In all societies some must originally assume to act. In some societies those who assume to act assume to the election must have been made before, or immediately at, the Declaration of Independence, would render the right nugatory. The doctrine of perpetual allegiance is not applied by the British courts to the American antenati. This is fully shown in the late case of Doe v. Acklam, 2 Barn. & Cres. 779." Inglis v. Trustees of Sailor's Snug Harbor, 3 Pet. 121. 711 Shar. Blk. 47. note 11. 72 Inglis v. Trustees, 3 Pet. 158. act in their own right, thus usurping the right to govern. This is the origin of feudal sovereignty (73). In the formation of our governments, by express declaration, those who assumed to act, in each step towards the formation of this government, have assumed to act, not on their own behalf, not of right, but in a representative capacity. "In the name of the good people of these colonies" (74), or in the name of the people. It is only such acts as are professedly performed that can, according to the rule of agency, be ratified. By accepting and ratifying such acts, they are made the acts of each individual. The doctrine of consent, by exercising the right of election after a reasonable period within which to exercise it, is the basis of each man's consent to the form of government (75). The 73 Chisholm v. Georgia, 2 Dall. 479. 74 Declaration of Independence. 75 Declaration of Independence; Inglis v. Trustees, 3 Pet. 160; Talbot v. Jansen, 3 Dall. 13. "From these conventions the constitution derives its whole authority. The government proceeds directly from the people; is ordained and established in the name of the people; and is declared to be ordained in order to form a more perfect union, establish justice, insure domestic tranquillity, and secure the blessings of liberty to themselves and their posterity.' The assent of the states, in their sovereign capacity, is implied in calling a convention, and thus submitting that instrument to the people. But the people were at perfect liberty to accept or reject it, and their act was final. It required not the affirmance and could not be negatived by the state governments. The constitution, when thus adopted, was of complete obligation, and bound the state sovereignties. It has been said that the people had already surrendered all their powers to the state sovereignties, and had nothing more to give. But surely, the question whether they may resume and modify the powers granted to government does not remain to be settled in this country. Much more might the legitimacy of the general government be doubted, had it been created by the states. The powers delegated to the state sovereignties were to be exercised by themselves, not by a distinct and independent sovereignty created by themselves. To the formation of a league, such as was the confederation, the state sovereignties were certainly competent. But when, 'in fact of acknowledging this right of choice involves the admission, on the part of those assuming to act, that they were acting for others. The convention of 1787 acted in autre droit (76). The action of the convention of 1787 and the adoption of the present constitution has been said to have been revolutionary; but the delegates who met in convention were careful not to violate the fundamental principle which had been adopted by all bodies of Americans as the polestar of all their acts when in convention assembled, namely: That all persons and all assemblages assuming to act or advise should assume to act in the name of the people, and while so acting should never perform an act having any force or validity from the mere performance, but deriving force and validity and life by virtue of previous instruction or subsequent ratification of the people, a principle guaranteeing absolute safety; for, whether beyond the constitutional bounds or within them, the rejection of the proposed rule in one case nullified the act, and the approbation of it in the other had the effect of blotting out antecedent errors and irregularities (77). § 123. The sanction of the constitution was its adoption by the people. Therefore, the present constitution, being before its adoption an unauthorized proposition, was submitted to the people for adoption, assent and ratification, order to form a more perfect union,' it was deemed necessary to change this alliance into an effective government, possessing great and sovereign powers, and acting directly upon the people, the necessity of referring to the people, and of deriving its powers directly from them, was felt and acknowledged by all." M'Culloch v. Maryland, 4 Wheat. 316, 403. 76 In the right of another. 77 Fed., No. 40. |