Continued from Section XXV
Section XXVI.
The tenth amendment is in these words:
The powers not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
This amendment, equally with the ninth, secures to “the people” all their natural rights. And why?
Because, in truth, no powers at all, neither legislative, judicial, nor executive, had been “delegated to the United States by the constitution.”
But it will be said that the amendment itself implies that certain lawmaking “powers” had been “delegated to the United States by the constitution.”
No. It only implies that those who adopted the amendment believed that such lawmaking “powers” had been “delegated to the United States by the constitution.”
But in this belief, they were entirely mistaken. And why?
1. Because it is a natural impossibility that any lawmaking “powers” whatever can be delegated by any one man, or any number of men, to any other man, or any number of other men.
Men’s natural rights are all inherent and inalienable; and therefore cannot be parted with, or delegated, by one person to another. And all contracts whatsoever, for such a purpose, are necessarily absurd and void contracts.
For example. I cannot delegate to another man any right to make laws—that is, laws of his own invention—and compel me to obey them.
Such a contract, on my part, would be a contract to part with my natural liberty; to give myself, or sell myself, to him as a slave. Such a contract would be an absurd and void contract, utterly destitute of all legal or moral obligation.
2. I cannot delegate to another any right to make laws—that is, laws of his own invention—and compel a third person to obey them.
For example. I cannot delegate to A any right to make laws—that is, laws of his own invention—and compel Z to obey them.
I cannot delegate any such right to A, because I have no such right myself; and I cannot delegate to another what I do not myself possess.
For these reasons no lawmaking powers ever could be—and therefore no law-making powers ever were—“delegated to the United States by the constitution”; no matter what the people of that day—any or all of them—may have attempted to do, or may have believed they had power to do, in the way of delegating such powers.
But not only were no lawmaking powers “delegated to the United States by the constitution,” but neither were any judicial powers so delegated. And why? Because it is a natural impossibility that one man can delegate his judicial powers to another.
Every man has, by nature, certain judicial powers, or rights. That is to say, he has, by nature, the right to judge of, and enforce his own rights, and judge of, and redress his own wrongs. But, in so doing, he must act only in accordance with his own judgment and conscience, and subject to his own personal responsibility, if, through either ignorance or design, he commits any error injurious to another.
Now, inasmuch as no man can delegate, or impart, his own judgment or conscience to another, it is naturally impossible that he can delegate to another his judicial rights or powers.
So, too, every man has, by nature, a right to judge of, and enforce, the rights, and judge of, and redress the wrongs, of any and all other men. This right is included in his natural right to maintain justice between man and man, and to protect the injured party against the wrongdoer. But, in doing this, he must act only in accordance with his own judgment and conscience, and subject to his own personal responsibility for any error he may commit, either through ignorance or design.
But, inasmuch as, in this case, as in the preceding one, he can neither delegate nor impart his own judgment or conscience to another, he cannot delegate his judicial power or right to another.
But not only were no lawmaking or judicial powers “delegated to the United States by the constitution,” neither were any executive powers so delegated. And why? Because, in a case of justice or injustice, it is naturally impossible that any one man can delegate his executive right or power to another.
Every man has, by nature, the right to maintain justice for himself, and for all other persons, by the use of so much force as may be reasonably necessary for that purpose. But he can use the force only in accordance with his own judgment and conscience, and on his own personal responsibility, if, through ignorance or design, he commits any wrong to another.
But inasmuch as he cannot delegate, or impart, his own judgment or conscience to another, he cannot delegate his executive power or right to another.
The result is, that, in all judicial and executive proceedings, for the maintenance of justice, every man must act only in accordance with his own judgment and conscience, and on his own personal responsibility for any wrong he may commit; whether such wrong be committed through either ignorance or design.
The effect of this principle of personal responsibility, in all judicial and executive proceedings, would be—or at least ought to be—that no one would give any judicial opinions, or do any executive acts, except such as his own judgment and conscience should approve, and such as he would be willing to be held personally responsible for.
No one could justify, or excuse, his wrong act, by saying that a power, or authority, to do it had been delegated to him, by any other men, however numerous.
For the reasons that have now been given, neither any legislative, judicial, nor executive powers ever were, or ever could have been, “delegated to the United States by the constitution”; no matter how honestly or innocently the people of that day may have believed, or attempted, the contrary.
And what is true, in this matter, in regard to the national government, is, for the same reasons, equally true in regard to all the State governments.
But this principle of personal responsibility, each for his own judicial or executive acts, does not stand in the way of men’s associating, at pleasure, for the maintenance of justice; and selecting such persons as they think most suitable, for judicial and executive duties; and requesting them to perform those duties; and then paying them for their labor. But the persons, thus selected, must still perform their duties according to their own judgments and consciences alone, and subject to their own personal responsibility for any errors of either ignorance or design.
To make it safe and proper for persons to perform judicial duties, subject to their personal responsibility for any errors of either ignorance or design, two things would seem to be important, if not indispensable, viz.:
1. That, as far as is reasonably practicable, all judicial proceedings should be in writing; that is, that all testimony, and all judicial opinions, even to quite minute details, should be in writing, and be preserved; so that judges may always have it in their power to show fully what their acts, and their reasons for their acts, have been; and also that anybody, and everybody, interested, may forever after have the means of knowing fully the reasons on which everything has been done; and that any errors, ever afterwards discovered, may be corrected.
2. That all judicial tribunals should consist of so many judges—within any reasonable number—as either party may desire; or as may be necessary to prevent any wrong doing, by any one or more of the judges, either through ignorance or design.
Such tribunals, consisting of judges, numerous enough, and perfectly competent to settle justly probably ninety-nine one-hundredths of all the controversies that arise among men, could be obtained in every village. They could give their immediate attention to every case; and thus avoid most of the delay, and most of the expense, now attendant on judicial proceedings.
To make these tribunals satisfactory to all reasonable and honest persons, it is important, and probably indispensable, that all judicial proceedings should be had, in the first instance, at the expense of the association, or associations, to which the parties to the suit belong.
An association for the maintenance of justice should be a purely voluntary one; and should be formed upon the same principle as a mutual fire or marine insurance company; that is, each member should pay his just proportion of the expense necessary for protecting all.
A single individual could not reasonably be expected to delay, or forego, the exercise of his natural right to enforce his own rights, and redress his own wrongs, except upon the condition that there is an association that will do it promptly, and without expense to him. But having paid his proper proportion of the expense necessary for the protection of all, he has then a right to demand prompt and complete protection for himself.
Inasmuch as it cannot be known which party is in the wrong, until the trial has been had, the expense of both parties must, in the first instance, be paid by the association, or associations, to which they belong. But after the trial has been had, and it has been ascertained which party was in the wrong, and (if such should be the case) so clearly in the wrong as to have had no justification for putting the association to the expense of a trial, he then may properly be compelled to pay the cost of all the proceedings.
If the parties to a suit should belong to different associations, it would be right that the judges should be taken from both associations; or from a third association, with which neither party was connected.
If, with all these safeguards against injustice and expense, a party, accused of a wrong, should refuse to appear for trial, he might rightfully be proceeded against, in his absence, if the evidence produced against him should be sufficient to justify it.
It is probably not necessary to go into any further details here, to show how easy and natural a thing it would be, to form as many voluntary and mutually protective judicial associations, as might be either necessary or convenient, in order to bring justice home to every man’s door; and to give to every honest and dishonest man, all reasonable assurance that he should have justice, and nothing else, done for him, or to him.