INHERENT RIGHTS OF CITIZENS
After some further talk General Butler said he agreed fully that the first ten amendments to the constitution were limitations of federal power and not restrictions of the rights of the States. The “privileges and immunities” however, claimed by these prisoners were privileges inherent in each one of the citizens of the several States of the United States, because in vast majority we were British subjects and had certain privileges and immunities inherited under the common law and mMagna cCharta, and among them, and the most thoroughly known and defined were the trial by jury for all high crimes, exemption from search and seizure without warrant of law, protection from self-accusation when a witness, and not to be deprived of life, liberty, or property without due process of law. We claim that all the rights, privileges, and immunities that belonged to a British subject under mMagna cCharta belong to each citizen of the United States; and that as new citizens of the United States were made, not citizens of States, by naturalization, these rights, priviligesprivileges, and immunities came to them as citizens of the United States. The effect of the fourteenth amendment was to guarantee these rights, privileges, and immunities to the citizens of all the States.
MEANING OF “DUE PROCESS OF LAW.”
The words “due process of law” as contained in the fourteenth amendment, and as used to define one of these guaranteed rights, mean “by the law of the land,” not the law of a county, a province, or a State, but the law of the country—the whole country. That is the law of the land, and was so understood by our forefathers as due process of law. Any other meaning given to “due process of law” as it is used in the fourteenth amendment would make it simply ridiculous and frivolous, because any State may enact a “due process of law” according to that State, by which a man’s life may be taken and from which not a single right or immunity of citizenship can protect him. Any law a State may make after the passage of this amendment for dealing with the rights of a citizen of the United States becomes wholly inoperative, because the “law of the land” must forever remain fixed as at that moment, not to be changed in regard to its citizens without a change of organic law, and for some purposes not to be even so changed.
THE CASES OF FIELDEN AND SPIES.
General Butler then proceeded to a consideration of the special and peculiar questions raised by the cases of Fielden and Spies who are foreigners. He contended that treaties were the supreme law of the land, and that these prisoners were entitled, by virtue of treaties with Germany and Great Britain, to all the rights and privileges of American citizens at the time such treaties were made. A State had no power to try these men by one of its own laws which was not the law of the land at the time the treaties were ratified. He did not mean, he said, that a foreigner could come into a State, and break its laws with impunity and that the State could not touch him. But he did mean that the State could only try him in accordance with the law of the land—the whole land—at the time the treaty with his government was made. This, he said, was an important question to every American citizen, because in return for the concession made by this government in the treaty with Great Britain the government of that country had made similar concessions to us. Suppose that a citizen of the United States should go to Ireland and should make some remarks about the advantages of a republican form of government, and should be arrested and tried by the crimes act in violation of the treaty. Would we not stand up and say that this man must be tried by a fair and impartial jury? He must be tried as an Englishman would have been tried at the time the treaty was made, and he cannot be dealt with in a more summary way under a later law.
GENERAL BUTLER’S ARGUMENT.
If this should happen, General Butler said, he hoped that the English authorities would not be able to hold up to him a decision of the United States Supreme Court sustaining the right to try an Englishman by the local law of a State which was nothing but a swamp and a howling wilderness at the time the treaty was ratified.
Returning to the rights of States, General Butler said that he was not prepared to deny that a State might change its organic laws with the consent of all its citizens, but such change would not bind a citizen of another State who had not assented to them.