“The New American Revolution” The American Sentinel 6, 19, pp. 145-148.

May 7, 1891

LAMST week we showed that which is open and clear to every reader of the Declaration of Independence, namely, that the American principle of government is that the Government is simply a piece of machinery which the people set up in order more fully to make themselves secure in the enjoyment of their rights. This principle of the Declaration is carried out in the Constitutions of all the States of the American Union, and of the national Constitution of this Union. These Constitutions, State and national, are simply the expression of the people as to the form of government which they will have, defining the powers and limitations upon the Government which they have thus established. This doctrine of the complete subordination and impersonality of the Government, is one of the two grand elements that formed the American Revolution.

As long as this principle shalt be maintained in its integrity, so long the beneficent fruits of the Revolution may remain to bless the American people, and through them other nations; but if this principle. shall be lost sight of and it shall come to, that place where the Government shall be personified and exalted above the people, then the design of the Revolution will be frustrated or indeed undone. There will, in fact, be a revolution backwards and the re-establishment of the principle of European Governments and of the despotism which it was the design of the revolutionary fathers for themselves and their posterity forever to escape. It may be news to the American people when we state that this revolution backwards has already been accomplished for the Government of the United States. It may be news to the American people to be informed that the American principle and system of government has been supplanted by the British and the Roman. Such, however, is the fact. All this has already been done. This reversal of the American Revolution has been already accomplished. Now to the proofs, and we sincerely ask the reader’s careful attention.

May 19, 1890, the Supreme Court of the United States rendered its decision in the case of the confiscation of the Mormon Church property appealed from the Supreme Court of the Territory of Utah, The case arose in consequence of the enforcement of what is known as the “Edmunds Law or Act of Congress, February 19, 1887,” forfeiting and escheating “to the United States the property of corporations obtained or held in violation of section three, of the Act of Congress, approved the first day of July, eighteen hundred and sixty-two.” By the Act of 1862 “any corporation for religious or charitable purposes was forbidden to acquire or hold real estate in any Territory, during the existence of the territorial government, of greater value than $50,000.” By the year 1887, the Mormon Church corporation had become possessed of real estate to the amount of about two millions of dollars, and personal property to the value of about one million. All of this property, above $50,000 worth of real estate, was declared forfeited to the United States.

The Mormon Church claimed that this property was held in trust by the corporation for the individual members of the [146] church who by donations, bequests, etc., had placed their property in the hands of the corporation to be held in trust. The United States disputed this claim. The ease was tried in the territorial court, and the whole sum was declared confiscated to the United States. The case was appealed to the Supreme Court of the United States, and the decision of the territorial Court, confiscating the property, was confirmed.

It is not necessary here to enter upon any discussion as to whether the Mormon Church had violated the law of 1862, first, because the Supreme Court of the United States decided that it was not necessary that that law should be violated in order that the corporation might be dissolved, but that “Congress for good and sufficient reasons of its own, independent of that limitation, and of any violation of it, had a full and perfect right to repeal its charter and abrogate its corporate existence, which of course depended upon its charter;” and second, because the merit of the question as between the Mormon Church and the United States is not material for the purpose of this article. The principle upon which the Supreme Court acted is all that is necessary to be discussed here; and that principle is discernible without any examination or discussion as to the merit of the controversy.

The argument of the Court proceeds as follows:—

When a business corporation, instituted for the purpose of gain or private interest, is dissolved, the modern doctrine is that its property, after the payment of its debts, equitably belongs to its stock-holders. But this doctrine has never been extended to public corporations. As to this, the ancient and established rule prevails, that when a corporation is dissolved; its personal property, like that of a man dying without heirs, becomes subject to the disposal of the sovereign authority.

Now with all due respect to the honorable Court, it may be inquired, why should not the modern doctrine be applied to public corporations as well as to private? Why should the ancient doctrine be adopted in such cases, when, to do it, it is necessary to proceed in the face of the principles and institutions of the Government of which the court is but a part. When the ancient doctrine is adopted the principles of the ancient governments must likewise be adopted, because the ancient doctrine is but the expression of the principles of the ancient governments. And the principles of all those governments were directly the reverse of the principles of this Government. This will be seen more fully as we proceed. It is in fact seen in the above expression that personal property, in such cases as this under consideration, becomes subject to “the sovereign authority.”

Upon this the question at once arises, Who or what is the sovereign authority in this Government? And to this question we have an answer that is certainly plainly expressed, and certainly true, if not absolutely authoritative. Bancroft is the historian of the Constitution not less than of the country, and upon this very point he has the following plain statement. “Is it asked who is the sovereign of the United States? The words sovereign and subjects are unknown to the Constitution.”—History of Constitution, Book V, chap. 1, par. 20.

By this it is evident that the Supreme Court steps upon foreign ground when it suggests the existence, in this country, of a sovereign authority. It is true that the people are sovereign; but the people do not exercise their sovereignty authoritatively as such directly, nor of themselves. “The people of the United States have declared in their Constitution that the law alone is supreme; and have defined that supreme law. Id. par. 21. In the foregoing quotation from the opinion of the Court it is made manifest that the existence of a sovereign authority was necessary to sustain a decision confirming the judgment already pronounced by the territorial Court. And as, according to the quotations given from Bancroft, there is no such thing known to American principles or institutions, the Court was necessarily driven beyond this Government and its institutions to find a basis for this sovereign authority. Accordingly the decision proceeds:—

The principles of the law of charities are not confined to a particular people or nation, but prevail in all civilized countries pervaded by the spirit of Christianity. They are found imbedded in the civil law of Rome, in the laws of the European nations, and especially in the laws of that nation, from which our institutions are derived.

But the principle of the government of Rome and all the European nations, and especially that nation from which the Court says our institutions are derived—the British—have always been directly the reverse of this. In those governments there were sovereign authorities. They were not governments of the people, but governments of the sovereign, and the people were subjects. That of Rome was absolutism solely. The Emperor was supreme in everything. He was parens patriot, that is, father of the country, and father of the people in the complete and fullest sense. He fed the people; he gave them money and whatever else they demanded, or whatever some political demagogue demanded, and took from them whatever he himself was pleased to demand. It was so also in England, at the period of the Revolution, though there the sovereign had not the absolute character that attached to the Roman; yet, what the king lacked in this respect, Parliament possessed, so that the system of absolutism and of paternalism prevailed there, as formerly in the Roman Government.

Nor is it correct to say, as did the Court, that our institutions are derived from England. Our governmental institutions are as far as possible the opposite of those of England and were intended to be so when they were established. The Government itself, as we have seen, is directly the reverse of that which existed in England when this Government was established. When the institutions of the United States Government were established the governments of Europe ruled by sovereigns who held their powers by “divine right.” In the Government of the United States that system was revolutionized and governments were declared to derive their just powers from the consent of the governed.

At that time the governments of Europe were all paternal. The Government the United States is of, and from, the individual. For “the distinctive character of the new people as a whole, their nationality, so to say, was the principle of individuality which prevailed among them as it had nowhere done before…. The Constitution establishes nothing that interferes with equality and individuality…. It leaves the individual alongside of the individual. No nationality of character could take form except on the principle of individuality, so that the mind might be free, and every faculty have the unlimited opportunity for its development and culture…. The institutions and laws of the country rise out of the masses of individual thought, which, like the waters of the ocean, are rolling evermore!Bancroft, Id. par. 7, 9.

In England, and all other European Governments, religion was held to be an essential element of civil government; but when this Government was formed it was entirely separate from religion, and disavowed not only any connection, but any right to any connection with religion.

The Supreme Court itself is an institution which so far from having been derived from any of the institutions of England or any other European nation, was a new creation entirely. The very form of government, that is, the distribution of its power into legislative, executive, and judicial, so far from being from England or any other European nation, was also a creation. “The tripartite division of government into legislative, executive, and judicial, enforced in theory by the illustrious Montesquieu, and practiced in the home government of every one of the American States, became a part of the Constitution of the United States, which derived their mode of instituting it from their own happy experience. It was established by the Federal convention with a rigid consistency that went beyond the example of Britain where one branch of the Legislature still remains a court of appeal. Each one of the three departments proceeded from the people.—Bancroft, Id. par. 18.

The decision of the Court proceeds:—

The manner in which the due administration and application of charitable estates is secured, depends upon the judicial institution and machinery of the particular government to which they are subject.

This statement is certainly clear enough: [147]

and in view of it, it is proper to inquire, Why then should the Court find it necessary to go to the judicial institutions and machinery of the governments of Europe, and even to that of Rome which has been dead more than twelve hundred years? However, instead of adhering to the judicial institutions and machinery of our own Government, the Court in the very same paragraph proceeds as follows:—

In England, the Court of Chancery is the ordinary tribunal to which this class of cases is delegated, and there are comparatively few which it is not competent to administer…. There are some cases, however, which are beyond its jurisdiction; as where, by statute, a gift to certain uses is declared void, and the property goes to the king…. In such case the king as parens patrie [parent of the country or father of the people], under his sign manual, disposes of the fund to such uses, analogous to those intended, as seems to him expedient and wise.

Now in this country there is no king; nor is there anything anywhere, among the institutions of this country that can fill the place, or exercise the office; of parens patrie. Here, instead of the Government or any part of it being the parent of the country or father of the people, the case stands just the reverse. The people are the parent of the Government and everything in connection with it. To secure the inalienable rights of men this Government was established, deriving its just power from the consent of the governed, and whenever the form of Government which was established by the revolutionary fathers becomes destructive of the ends for which it was created, “it is the right of the people to alter or abolish it and to institute a new government, laying its foundation on such principles and organizing its powers in such form as to them shall seem most likely to effect their safety and happiness.” So that in this Government, and according to American doctrine, there is no such thing as parens patrie and there is no place for such a thing even if the thing should be proposed.

Therefore, as there is in this Government, neither king nor parens patrie to which the property in this case might go, it follows logically from the previous statement of the Court (that the administration and application of the estate involved, depends upon the judicial institution and machinery of the particular government to which they are subject), that the decision of the territorial Court should have been reversed and the money involved restored to the individuals to whom it belonged. Such is the logic of the case, according to the principles and institutions of the Government of the United States. But this logic was not followed. Instead of it, the Court proceeded to create and establish a sovereign power, and clothe it with the office of the parent of the country and the father of the people.

The Court first quoted a number of decisions, Roman, Spanish, and English, to sustain the principles which it had adopted from Rome and England, every one of which is of course strictly in accord with the character of sovereignty and paternal-ism which is part and parcel of all those governments; but not one of which is applicable under American institutions, nor can be sustained according to American principles. Then the decision says:—

The authority thus exercised, arises in part from the ordinary power of the Court of Chancery over trusts, and in part from the right of the government or sovereign as parens patrie…. If it should be conceded that a case like the present transcends the ordinary jurisdiction of the Court of Chancery, and requires for its determination the interposition of the parens patrie of the State, it may then be contended that, in this country, there is no royal person to act as parens patrie, and to give direction for the application of charities which can not be administered by the court. It is true we have no such chief magistrate. But here the Legislature is the parens patrie, and unless restrained by constitutional limitations, the Legislature possesses all the powers in this regard which the sovereign possesses in England.

This at once creates a sovereign power and clothes it with paternal authority. And if this doctrine shall be maintained, so that it becomes a principle of American law, and shall become established as a principle of Government here, then the revolution backwards is complete; government of the people is gone; and that of a sovereign parent of the people is put in its place. Then the doctrine of the Declararation [sic.] of Independence and of the Constitution of the United States is subverted and the doctrine of sovereignty, absolutism, and paternalism, is established in its stead. Then also Bancroft’s history in the place above cited, will need to be revised so that it shall read as follows: “Is it asked who is the sovereign of the United States? The Legislature is the sovereign and the people are subjects.”

To prove the correctness of its position the Court quoted from Chief Justice Marshall, in the Dartmouth College cases, the statement that “By the Revolution, the duties, as well as the powers of government devolved upon the people.” This is true enough, but it is particularly to be noticed that the Court has made these devolve upon the Legislature. It is a singular piece of logic that would prove that certain powers devolve upon the Legislature, by citing a passage which declares that those powers have devolved upon the people. Again, the Court quoted a statement from Chancellor Kent, that “in this country the Legislature or government of the State as parens patrie has the right,” etc., and further from Justice McLean, that “when this country achieved its independence, the prerogatives of the crown devolved upon the people of the States.” Justice McLean’s statement, like that of Chief Justice Marshall’s is strictly correct in saying that these powers devolved upon the people. But that of Chancellor Kent, like some other legal expressions of his, is utterly false and contrary to American principles. Among American institutions there is no king, and aside from the people there is nothing that corresponds to a king. And even in the people all that corresponds to a king is in the individual; for each individual American citizen is sovereign and king in his own right.

Again, the Court says:—

This prerogative of parens patrie is inherent is the supreme power of every State, whether that power is lodged in a royal person or in the Legislature.

But in this country the supreme power is lodged neither in a royal person nor, in the Legislature; but as stated by Bancroft; in the law alone, and in the Constitution that supremacy is defined.

It is true that the decision of the Court is qualified by the expression, that “unless restrained by constitutional limitations, the Legislature possesses all the powers in this regard which the sovereign possesses in England.” But this is another instance of the reversal of the principles of our Government. This argues that the Legislature is already in possession of power, and can exercise that power to the full, unless it is restrained by constitution limitations. Whereas, the truth is that the Legislature has no power at all, is possessed of no authority at all, and can exercise none except as it is granted. The Constitution plainly declares “The powers not delegated to the United States by Constitution nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The express doctrine of the Constitution is, that the powers not delegated are reserved. The doctrine of this decision implied, if not expressed is, that the powers not prohibited are possessed. This in itself would be sufficient ground upon which seriously to question the correctness of the decision but there is laid against it, by the Chief Justice, additional evidence that the Legislature is restrained by the very constitutional limitations suggested by the Court.

The Chief Justice, with Justice, Field Lamar concurring, dissented from the decision. In his dissenting opinion he speaks as follows:—

In my opinion, Congress is restrained, not merely by the limitations expressed in the Constitution, but also by the absence of any grant of power, expressed or implied in that instrument. And no such power as that involved in the act of Congress under consideration is conferred by the Constitution, nor any clause pointed out as its legitimate source. I regard it of vital consequence, that absolute power should never be conceded as belonging under our system of government to any one of its departments. The legislative power of Congress is delegated and not inherent, and is therefore limited. I agree to the power to make needful rules and regulations for the Territories necessarily comprehends the power to suppress crime and it is immaterial even though that crime assumes the form of a religious belief or creed. Congress has the power to extirpate polygamy in any of the Territories, by the enactment of a criminal code directed to that end; but it is not authorized under the cover of that power to seize and confiscate the property of persons, individuals, or corporation, without office found, because they may have been guilty of criminal practices. [148]

The doctrine of cy-pres is one of construction and not of administration. By it a fund devoted to a particular charity is applied to a cognate purpose, and if the purpose for which this property was accumulated was such as has been depicted, it can not be brought within the rule of application to a purpose as nearly as possible resembling that denounced. Nor is there here any counterpart in Congressional power to the exercise of the royal prerogative in the disposition of a charity. If this property was accumulated for purposes declared illegal, that does not justify its arbitrary disposition by judicial legislation. In my judgment its diversion under this act of Congress is in contravention of specific limitations in the Constitution; unauthorized, expressly or by implication, by any of its provisions; and in disregard of the fundamental principle that the legislative power of the United States as exercised by the agents of the people of this Republic is delegated and not inherent.

There can be no doubt whatever that the Chief Justice expressed the truth in this matter according to American principles. It therefore as certainly follows that the decision of the Supreme Court of the United States in this case, is not true American law; that it enunciates principles which, if they become established, do actually create a revolution backwards; and that such a thing has, in fact, been done so far as it is possible for the Supreme Court to go in the matter.

A. T. J.

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