Page:The Green Bag (1889–1914), Volume 15.pdf/366

 A Century of Federal Judicature. cases arising out of the various war meas ures adopted by national and State govern ments. In Beckwith v. Bean, 98 U. S. 266, he said, in dissenting; from the judgment of (the court: "The doctrine sometimes ad vanced by men, with more zeal than wisdom, that whenever war exists in one part of the country, the constitutional guaranties of per sonal liberty and of the rights of property are suspended everywhere, has no foundation in the principles of the common law, the teach ings of our ancestors, or the language of the Constitution, and is at variance with every just notion of a free government. Our sys tem of civil polity is not such a rickety and ill-jointed structure that when one part is dis turbed the whole is thrown into confusion and jostled to its foundation. The fact that rebellion existed in one portion of the coun try could not have the effect of superseding or suspending the laws and Constitution in a loyal portion widely separated from it. ... A claim to exemption from the re straints of the law is always made in support of arbitrary power whenever unforeseen exi gencies arise in the affairs of government. It is inconvenient; it causes delay; it takes time to furnish to committing magistrates evidence which, in a country where personal liberty is valued and guarded by constitu tional guaranties, would justify the detention of the suspected; and, therefore, in such exi gencies, say the advocates of the exercise of arbitrary power, the evidence should not be required. A doctrine more dangerous than this to free institutions could not be sug gested by the wit of man. . . . 'AH the an cient, honest, juridical principles and institu tions of England/ says Burke,—and it is our glory that we inherit them,—'are so many clogs to check and retard the headlong course of violence and oppression. They were in vented for this one good purpose, that what was not just should not be convenient.' Whoever, therefore, favors their subversion or suspension, except when, in the presence

325

of actual invasion or insurrection, the laws are silent, is consciously or unconsciously an enemy to the Republic." He enforced similar views in Cummings v. ¡Missouri, 4 Wall. 277, where, in delivering the judgment of the court, he said that "the theory upon which our political institutions rest is, that all men have certain inalienable rights—that among these are life, liberty and the pursuit of happiness; and that in the pur suit of happiness all avocations, all honors, all positions, are alike open to every one, and that in the protection of these rights all are equal before the law. Any deprivation or suspension of any of these rights for past conduct is punishment, and. can be in no otherwise defined." And in the contempora neous case of Garland, 4 Wall. 333, where the question was, not as to the power of Con gress to prescribe qualifications, but whether that power had been exercised as a means for the infliction of punishment, against the pro hibition of the constitution, he held, by a similar course of reasoning, that this result could not be accomplished! indirectly by a State under the form of creating qualifica tions. See, also, Dent v. West Virginia, 129 U. S. 114. No more vigorous (and, in many minds, conclusive) defense of civil rights can be found in the reports than his dissenting opin ion in the oleomargarine case of Powell v. Pennsylvania, 127 U. S. 678. The doctrine asserted in that judgment, he maintained, "is nothing less than the competency of the legislature to prescribe out of different arti cles of healthy and nutritious food, what shall be manufactured and sold within its limits, and what shall not be thus manufac tured and sold. I have always supposed that the gift of life was accompanied with the right to seek and produce food, by which life can be preserved and enjoyed, in all ways not en croaching upon the equal rights of others. I have supposed that the right to take all measures for the support of life, which are