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which was to be paid to Haslerig, and providing that Lilburne should be banished, and depart the kingdom within thirty days, and that in case of his return, he should be proceeded against as a felon, and suffer the pains of death accordingly. When summoned to the bar of the House to receive his sentence he refused to kneel and was accordingly ordered to withdraw. The House on January 30th, 1651, passed an act to carry out its judgment, which, after allowing Lilburne twenty days to leave the country, provided that in case after the expiration of that time he should be found there," the said John Lilburne shall be, and is hereby adjudged a felon, and shall be executed as a felon without benefit of clergy." He accordingly went to Holland, but two years later returned to England to contest the validity of the law, when he was committed to Newgate and brought to trial. He filed several exceptions to the indictment upon the grounds that the description of the Parliament in the indictment was informal, that the act did not conform to the judgment upon him, and that the indictment did not set forth with sufficient specification that he was the John Lilburne described in the act. The most interesting exception was, however, that the act was void as contrary to the fundamental principles of law. This was as follows:

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"Exception 2. The said Indictment is grounded upon the fore-recited act, intitled, An Act for the Execution of a Judgment given in Parliament against Lieut. col. John Lilburne'; and so relates only to some judgment supposed to be given in parliament against the said It. col. John Lilburne; and if no such judgment were given, the act were void, and the judgment also. Now it doth not appear that any judgment, for any crime whatsoever, was given in parliament against the said Lieut. col. John Lilburne.

"1. Before any judgment can be given in law against any Englishman, for any crime, there must be either an Indictment, presentment, or some information or accusation, against him, to that court that judgeth him, for some crime supposed to be committed by him. 2. The party accused must either appear before that court, or be out-lawed for not appearing. 3. If the party appears, he must either confess the crimes or misdemeanors whereof he is accused, or else plead to the indictment, presentment, or information, or accusation against him, and come to trial thereupon. And as some of these ought in law to precede a judgment against any Englishman, so also some of these afore-mentioned proceedings, in order to a lawful judgment, ought to be entered upon such record, wherein any such judgment is entered; and unless it doth appear upon the record, wherein any judgment is entered against any Englishman for any crime, that some

47 Howell's State Trials, vol. v, pp. 407–409.

such proceeding as abovesaid, hath been made before the judgment passed against him, the judgment is to be holden for erroneous and void, and ought so to be reputed. Now it doth not appear either by the said pretended act, as it is recited in the indictment, nor by any record of the supposed judgment produced, nor any otherwise, that there was any indictment, presentment, or information to the parliament of the Commonwealth of England against the said Lieut. col. John Lilburne; or even if there were, it doth not appear, that he ever appeared to the same, nor that he was ever outlawed for not appearing; neither doth any pleading by the said lieut. col. John Lilburne to any such indictment or information appear, nor any trial of him for the same. And therefore if any such pretended judgment be entered, as the said supposed act, and the Indictment of John Lilburne, prisoner at the bar, thereupon, doth relate unto, the same is erroneous and void in law; and by consequence the said indictment is void." 9748

In his closing speech to the jury, he took the position that the act was void because unconstitutional; and upon that ground he was acquitted, as appears from the subsequent examination of the jurors before the Council of State, where several substantially admitted this, by saying that they voted for acquittal because they were judges of the law as well as the facts, although two or three claimed that their verdict was on the ground of insufficient proof that he was the Lilburne described in the statute."

"Concerning the act whereupon he was indicted, this he said: It was a lye and a falsehood: an act that hath no reason in it, no law for it; it was done as Pharoah did; Resolved upon the question, that all the male children should be murdered. That if he died upon this Act, he died upon the same score that Abel did, being murdered by Cain. That the act was a void act, a printed thing, there being no one punctilio or clause in it, grounded on the law of England, and that it was an unjust, unrighteous, and treacherous act, and that he doubted not to shatter that act in pieces," so

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"As for all parliaments in general, he said parliaments were a delegated power, and ought to give a reason of all they do; and that it was not in their power (as he had proved in his plea at large, before the Lord Chief Justice Rolls and Mr. Justice Bacon, May 18, 1647;) nor had they the least jurisdiction, to sentence him, or any of the least free-born Englishman; unless it be their own members. That all crimes whatever were to be heard, determined, and judged at the Common-law, and no where else. Acts of Attainder were not lawful."

"For the Jury, he called them his honourable Jury, and said they were

48 Howell's State Trials, vol. v, pp. 438-439.

49 Ibid., pp. 446-450.

50 Ibid., p. 443.

the Keepers of the Liberties of England; and will make it appear that the Jury are the Judges of the Law, as well as of the Fact.

"Moreover he charged them to consider, Whether if I die on the Monday, the parliament on Tuesday may not pass such a sentence against every one of you twelve; and upon your wives and children, and all your relations; and then upon the rest of the city, and then upon the whole county of Middlesex, and then upon Hertfordshire, and so by degrees there be no people to inhabit England, but themselves? " 51

This is the first case in the history of jurisprudence, where an act of a national legislature was disregarded as unconstitutional.

A large gathering of people was present at the trial resolved to rescue him by force if he were convicted. He seems to have been troubled no further, and it is said that Oliver Cromwell, who, though publicly his enemy, had reasons for not pushing him too far, subsequently paid him privately a pension equivalent to the pay of a lieutenantcolonel. He died in 1657, less than forty years of age, but so long as civil liberty is preserved the name of John Lilburne should not be forgotten.

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51 Howell's State Trials, vol. v, pp. 443-444.

52 Oldmixon vol. ii, p. 419.

CHAPTER II.

NATURE OF THE CONSTITUTION AND THE PREAMBLE. NULLIFICATION, SECESSION AND RECONSTRUCTION.

§ 11. Nature of the Constitution of the United States. THE UNITED STATES are a nation. The Union is not a league, and cannot be dissolved except by a revolution. These are principles which have been established by the adjudications of the courts, the action of Congress and the executive, the acquiescence of the States, and the arbitrament of war. The question lies at the foundation of the government, and on it the people of the country were for three-quarters of a century divided. Now that a generation is in power which accepts the decision, whether sound or erroneous, as final, the arguments on either side deserve a dispassionate consideration.

Those in favor of the legal right of secession are as follows: It is an axiom of political science that no law can bind a sovereign; for a sovereign is above all law. The Articles of Confederation were a league between sovereign States. Those sovereign States formed the Constitution. It was drafted by their delegates and ratified by them separately. The right to withdraw from the Union, it has been claimed, was reserved by New York and Virginia in their ratifications. It was called by its makers and statesmen, contemporary with its adoption, as well as since, a compact, a confederacy, and a federal government. The United States have the same name that was applied to them under the Articles of Confederation. There is nothing in the Constitution to show that it is a different bond. No clause of that instrument gives power to coerce a State. Such power was suggested in the Federal Convention, but rejected by a large majority. The States are expressly recognized in that instrument. Should they refuse to act, for example, by failing to elect Senators, the Union would cease to exist. It must then, it is contended, be a league or com

pact, and nothing more. Now a compact, even between individuals, ceases to be binding on the breach of one of its conditions. International law justifies the dissolution of a league for a similar reason. In the case of individuals the courts will determine whether on one side a breach has been made which relieves the other from the stipulations upon its part. There is no court with power to adjudicate between the claims of nations. Each independent State must be its own judge in such a case; and when one determines that there is cause sufficient to itself for the dissolution of a league or treaty of alliance, the league is thereby dissolved, in view of international law as well as in fact, and the aggrieved party has no remedy but war. If the Constitution is a league, it is no longer binding upon any one of the States which has determined to withdraw from it. The citizens of that State must, it is said, obey the will of the State in that respect, and in waging war under the State banner against the United States, they are not guilty of treason.

The advocates of the prevailing view have denied that the States were sovereign before the adoption of the Constitution. They have denied that the States formed the Constitution, insisting that its preamble shows that it was adopted, not by the States, but by the people of the country at large, whose votes were taken in the States of their respective residence for convenience, without any legal signification. Even if the Constitution was formed by some of the States, they had the power to so merge themselves together in one nation as to make subsequent separation illegal. The proceedings of the Federal Convention, it is claimed, show that it was the intention of its members to establish a national form of government, and not a league. The fact that the document which they constructed terms itself a constitution and not a league, its provisions in other respects and the form of government which it creates operating directly upon the people, and not upon the States, with direct and popular representation in the lower house of Congress, and with a court having jurisdiction over States to act as a common umpire, all support the construction that it was its intention to establish an indissoluble union of indestructible States. The subsequent decisions of the Supreme Court of the United States, the action of the other departments

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