Magna Charta: The Foundation of American Liberties
by John A. Marshall
Personal or civil liberty is that boon which man values most among the
inestimable gifts of [the Mighty Creator]. In the proper enjoyment of it, he
stands forth in the image of his Maker, self-reliant and strong. Take
from him this inherent natural right — through the forms of government
or law — by subjugation or force — by tyranny or prerogative — and he is
a mere machine, worked by the hand of power.
It is equally true that the prosperity and superiority of the State or
Nation having the elements of personal or civil liberty or freedom
incorporated in the formation of the society which constitutes it, is in
proportion to the extent of the civil privileges, immunities, and
franchises. When a State properly enjoys liberty, its progress is the
more rapid and stable. When the liberties of the people are abused and
degraded, the State retrogrades.
The proper uses of liberty, in a free government where emulation
receives encouragement and support, stimulate the citizen, and produce
culture, refinement, art, science, invention, learning, eloquence,
oratory, statesmanship, and religion, in the highest degree. No other
form of government advances the virtues and interests of the people to
such superiority and pre-eminence. It invites competition — it is the
lever of progress — it is the friend of ambition. Hence, when the whole
people — like the individual man — are inspired with a pure, patriotic,
and instinctive love of liberty, the State be great, illustrious, and
The citizen of a free State has no superior, in point of liberty or in
point of law. The humblest citizen is entitled to the same rights and
privileges, and the same protection, to which the highest magistrate is
entitled. The law in a free government is no respecter of persons, nor
does it make any distinction, in so far as liberty is concerned.
In a free government, the Constitution throws around the citizen certain
safeguards or protections to his liberty. It gives him the right to
trial by jury. It secures him against unreasonable searches and
seizures. It protects him against arrest, except on oath made by a
responsible person. If maliciously arrested or falsely imprisoned, he
has his redress or action against the informant or magistrate for
trespass or false imprisonment. "Every restraint upon a man's liberty,"
says Kent, "is, in the eye of the law, an imprisonment, wherever may be
the place, or whatever may be the manner in which the restraint is
effected." Even words may constitute an imprisonment, if they impose a
restraint upon a person, and he submits.
He, then, who, possessing the power, robs the citizen of his liberty,
even for an hour — yea, for a moment — without the sanction of law, or
deprives him of the right to all the immunities of the law, commits a
crime against the interests of the State, which time cannot expiate. By
his example, the people are made reckless of their liberties and their
allegiance to the State. Blackstone says:
Of so great importance to the public is the preservation of personal
liberty, that, if once it were left in the power of any, the highest
magistrate, to imprison arbitrarily whoever he or his officers thought
proper, there would soon be an end of all other rights and immunities.
To bereave a man of his life, or by violence to confiscate his estate,
without accusation or trial, would be so gross and notorious an act of
despotism as must at once convey the alarm of tyranny throughout the
whole kingdom; but confinement of the person, by secretly hurrying him
to jail, where his sufferings are unknown or forgotten, is a less
public, a less striking, and therefore a more dangerous engine of
The highest aim of the magistrate in a free government should be to
protect and defend, and not destroy, the liberty of the citizen. Even
when the State is in danger, it is the province of the Legislature, and
not of the magistrate, to protect it against external or internal foes.
In a free and elective system of government, as in the United States,
where a written Constitution has been adopted, the different branches of
government are so well marked out and defined, and the duties and
offices of each are so independent and distinct, that under no possible
circumstances can usurpations in any, or the encroachments of one upon
the other, be excused. Any usurpation whatever, in either branch, leads
to anarchy, demoralization, and finally disruption. The blow may not be
aimed at, but it strikes into the very heart of liberty.
Hence the absolute necessity of keeping the liberties of the people pure
and immaculate, and free from infringement, by the makers, the
administrators, and the expounders of the laws.
In order to protect and increase the power and prolong the independence
of the State, the liberties of the people must be fostered, guarded, and
secured. "It" (liberty), says Burke, "is not only a private blessing of
the first order, but the vital spring or energy of the State itself,
which has just so much life and vigor as there is liberty in it."
To protect liberty, the streams of legislation, administration, and
justice must be kept clear, from the fountain-head even unto the mouth.
Usurpations and encroachments upon the rights and liberties of the
citizen are as deleterious to the tranquility and welfare of the State
as the unbridled, unrestrained, and licentious abuse of them by the citizen.
These prefatory remarks are made merely to remind the general reader of
his constitutional rights. Of late, the civic rights of the citizen have
been abridged. It remains to be seen whether he will maintain them. The
permanence and stability of the government rest entirely with the
citizen. It is for him to say how long free government will exist in our
Although free government may be traced back to a period of about three
thousand years, it is not my intention to allude to the experiments in
establishing it beyond the adoption of Magna Charta, in which may be
found the vital principles on which it is based. The political rights
which we enjoy under our Constitution may be said to be derived directly
from that document.
Yet, it is proper to say here, that the principles of liberty enunciated
and the privileges granted by the Magna Charta, many of which had been
digested in a code of laws by Alfred, were not confined exclusively to
the Anglo-Saxons; for almost at the same era, upon the election of King
Christopher II. of Denmark, he was obliged to sign a charter granting
nearly the same privileges and immunities as were contained in the Magna
Charta, among which were that no man should be imprisoned, or deprived
of life, liberty, or property, without public trial and conviction
according to law; and that no law should be made or altered without the
consent of the Parliament, composed of the best men of the kingdom, to
be held annually by Wyborg.
And it may be said, that in Northern Europe, as well as in England, at
the time of the granting of the Great Charter, the German tribes
generally, and the Danes, were inspired by the same spirit of liberty
which was enkindled in the hearts of the Anglo-Saxons, their descendants.
From the time of the granting of the municipal privileges and personal
rights, as contained in Magna Charta, signed by King John on the 15th of
June, 1215, but which was not really established until "after the
contests of near a whole century," for during that time, "it is
computed," says Hume, "that about thirty confirmations of the charter
were at different times required of several kings, and granted by them
in full Parliament," the people of England have been jealous of their
personal liberties and watchful of their civic rights.
Since that period, the genius of the English people has been strongly
and invariably in favor of liberty, while royal prerogative, until the
accession of William and Mary, inclined as violently towards arbitrary
The Magna Charta laid the foundation for a Constitution, which has
engrafted in it all the attributes and securities of personal liberty,
and stands a monument of enlightened statesmanship, worthy the pride and
admiration of the English people.
After the expulsion of the kings, the Romans, being careful of their
liberties, erected and dedicated a temple to the Goddess of Liberty, and
it was then esteemed an honor to call oneself a Roman citizen — Civis
In our own country, there was a time when the proudest appellation a man
could bear was that of American citizen. "I am an American citizen,"
implied liberty and safety — protection and justice. Then, the national
shield was, indeed, a shield with arms — a shield which defended the
citizen against every act of tyranny and usurpation — a shield which
guarded him on land and sea, at home and abroad. Then, personal liberty
was a citizen's birthright. Then, free speech was unshackled. Then, Mr.
Webster could exclaim:
It [free speech] is a homebred right — a fireside privilege. It has ever
been enjoyed in every house, cottage, and cabin in the nation. It is not
to be drowned in controversy. It is as undoubted as the right to
breathing the air and walking on the earth. It is a right to be
maintained in peace and in war. It is a right which cannot be invaded
without destroying constitutional liberty. Hence, this right should be
guarded and protected by the freemen of this country with a jealous
care, unless they are prepared for chains and anarchy.
What are the protections of the law now?
When the arteries which convey the life-blood from the heart of the
Constitution to all parts of its body once become paralyzed, the most
skillful treatment can never restore it to its original vigor and
healthful condition. A partial recovery may be effected, but the disease
Oppressive and illegal acts by one Administration may be adopted as
established precedents for similar encroachments by succeeding ones; and
who can gainsay the right? Surely, not the people, when they not only
encourage, but are accessories in the wrong. Therefore, without a proper
and conscientious regard for the majesty of the law, and the observance
of personal rights, there is no security for permanence in free government.
From the organization of the Government, until the administration of
the late Mr. Lincoln, we know of no case in which an American citizen
was arrested without warrant, imprisoned without charge preferred, and
released, after months and years of incarceration, without trial;
although he who will take the trouble to turn over the leaves of
American history will discover that, in many cases, there was not only
imaginary, but real "disloyalty" among citizens, dangerous to the common
interests of the Government, during former Administrations.
Educated in the principles of republicanism, intelligent beyond
comparison, and heretofore governed by conservative magistrates, whose
wisdom, experience, and characters commanded respect and confidence — a
people who had always supported the Government with alacrity, unselfish
devotion, and fidelity, was unprepared to be obliged to submit, without
redress, except by physical resistance, to an arbitrary and tyrannical
prerogative, unrestrained by law, reason, or justice.
The Administration of Mr. Lincoln having been ushered into existence
under the banner of universal freedom, it was to be expected, from the
enlightened condition of the age, and the conservative and patriotic
disposition of the people in the "loyal" States, that the Government
would be administered in accordance with the promised reforms. In this,
however, the people were disappointed. Legislative enactments were
unrestrained by constitutional provisions. The President assumed quasi
plenary power, to make and enforce laws without the interference,
assistance, or aid of the legislative or judicial branches of
Government; and, in a word, drew around his individual person — all the
powers of government, Municipal, State, and National, which he enforced
through his obsequious Secretaries. Consolidation of interests, and
centralization of power, were complete. The Government was the President
— the President was the Government.
But we forbear to criticise. We present facts. Let them speak. Let the
people answer. No words we could use would bring relief to the harrowed
feeling of, or redress the wrongs perpetrated upon, thousands of
unoffending citizens, by their unwarranted incarceration in American
Bastiles during the Administration of the late President Lincoln. We
contemplate the cruelties, oppressions, persecutions, and imprisonments,
committed during that long night of political despotism, with alarm. We
shudder for the future of the country, when we take a retrospect of the
If a truthful presentation of the facts, as contained in this volume,
will in anytime prevent in the future a repetition of the wrongs and
crimes committed against the rights and liberties of the people, in the
name of liberty, then our highest ambition has been satisfied. To
prevent flagitious wrongs from being committed against the
constitutional rights of individuals is the duty of every good citizen
in a free State. Liberty is too valuable a privilege, and, as we have
endeavored to demonstrate, has been to costly an inheritance, to be
bartered away for the gratification of personal or political animosity.
This article was extracted from John A. Marshall, American Bastile
(Philadelphia, Pennsylvania: Thomas W. Hartley and Company, 1881).