THE STATE CAPITOL building of an American State became dangerous and untenable as the result of an earthquake. No public buildings were available at the seat of government to house the executive and administrative offices of the State. Privately owned rental properties were available at excessive rentals, but they consisted of warehouse-type buildings which were most uncomfortable and inconvenient for use by State Personnel. Across the street from the Capitol building was a new, modern and undamaged skyscraper type of office building occupied by tenants.

In said emergency, the Governor of the State issued a Proclamation in which he recited the existence of the emergency and that as a result it became absolutely necessary that he exercise “the inherent and plenary powers” of the Chief Executive of the State to take over said office building in order to continue in operation the vital and necessary services of the State. The Proclamation proceeds to confer power on X, the Director of Public Safety, to take over the office building and dispose of all tenants. The Proclamation named and Assessment and Arbitration Board and empowered it to assess all damages to be paid by the State to the owner of the building and the tenants. Its findings were to be final and binding upon all parties. Acting under the authority conferred upon him by the Proclamation, X took possession of the building and dispossessed all tenants by force or by a show of force. The Board immediately assessed damages which were refused by all concerned.

You are consulted by the owner of the building and also a leasehold tenant as to their legal rights, and as to the constitutional validity of the Governor’s Proclamation, and the acts of X, under it.

Assume that the Constitution of the particular State involved is identical with the Constitution of Georgia.

Recur to and consider the applicable underlying fundamental principles of constitutional government and,

1—State your conclusions;

2—Write at least 300 words in support of your conclusions.

The Governor, as Chief Executive, of the American State involved in this question has no “inherent or plenary powers.” His proclamation was therefore void unless specific authority for the issuance of said proclamation may be found in the Constitution. Nothing in the Constitution of Georgia authorizes directly or by implication the actions of the Governor. Many specific provisions forbid the promulgation of such a proclamation. The acts of “X” were without any semblance of authority and he was a mere trespasser. The acts of the Arbitration and Assessment Board were absolutely void and a nullity. Earthquakes do not amend constitutions. “Necessity,” feigned or real, does not confer power.

The theory of constitutional government recognized by Magna Carta and other constitutional documents of the Anglo-Saxon race prior to the American Revolution was that sovereignty rested in kings by divine right, and that the liberties, rights and freedoms of the people rested upon grants from such kings. Thus Magna Carta was purchased by a people in whom there was no sovereignty, from a king who possessed all sovereignty. The purchase price for Magna Carta was one-fifteenth part of all subjects’ moveables. The 29th Chapter of Magna Carta was in part as follows:

No freeman shall be . . . disseised of his freehold or liberties, . . . nor will we not pass upon him, nor condemn him, but by lawful judgment of his peers, or by the law of the land.

That kings could not take away from the people that which they had granted to the people was supported by the doctrine that a right, liberty or freedom once granted is irretrievable, or “unalienable.” However, kings were never at a loss to find “liberal” advisers who scoffed at that “reactionary” doctrine, and who made a mockery of the “fiction” that kings may not recapture that which they have granted, however solemnly. Indeed such a doctrine was a negation of the premise that kings are vested with sovereign powers derived from God. Thus grants were no sooner given than taken away. That explains why it was necessary that Magna Carta be “reaffirmed” by Parliament more than 40 times between 1225 and 1701 A.D. in England, and why all English Constitutional documents were mere parchment, at least until judges were emancipated in 1701 from control by kings.

English subjects who left England to people the continent of America brought with them all the “rights of Englishmen” both under specific charter grants and under customary (or common) law. Even though the prerogatives of kings, within England, were fenced in by parchments such as the English Petition of Right, Habeas Corpus Act, the English Bill of Rights and the Act of Settlement (all parliamentary acts assented to by frightened kings) the “liberal” ministers of English kings and queens advised that the royal prerogative to govern English subjects in territories or colonies by proclamations, commissions and instructions was not fenced in. That theory of government, perverted in large part from Roman law, history and practice applicable to “conquered” provinces and an alien people, was supported by the doctrine that acts of parliament later in time than the settlement of a colony, had no application to such colony unless the colony was specifically mentioned therein. Efforts of colonial assemblies to “reaffirm” Magna Carta, the principles of the Petition and Bill of Rights, the Habeas Corpus Act and the Act of Settlement were always disallowed by the king as “trenching upon prerogative.” The American Revolution was fought on constitutional issues, and to “reaffirm Magna Carta” by a people who were unable to understand the specious distinctions between the “rights” of an English subject in Manchester and the “rights” of an English subject in Boston.

Prior to the Revolution, during the Revolution and after the Revolution, the wisest men of America knew that there was no such thing as “divine right of kings” and that “divine right” rests in the people to govern themselves; that rulers have only such powers as are conferred upon them by the people; that rulers have no inherent or plenary powers and that rulers are the “trustees and servants” of the people. Prior to the Declaration of Independence this new theory of government found its first application in a constitutional frame of government in the Bill of Rights and Constitution of Virginia. Sections 1, 2, 5, 7, 12 and 15 of the Virginia Bill of Rights are as follows:(1)

The Virginia Bill of Rights and Constitution were written by the man described by Thomas Jefferson as “the wisest man of his generation.” Madison described him as one who “possessed the greatest talents for debate of any man I have ever heard speak,” and as the most “powerful reasoner and profound statesman” he had ever known. Randolph said of him, “at a glance he saw to the bottom of every proposition.” The wisdom of this “wisest man of his generation” was utilized by Jefferson and re-expressed in the Declaration of Independence, three weeks later, in part as follows:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness. That to secure these rights governments are instituted among Men, deriving their just powers from the consent of the governed, that whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, . . .

After cataloguing the acts of British kings which made an odious distinction between the Englishmen of England and the Englishmen of America, the Declaration proceeds:

In every stage of the Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people . . . .

The wisdom, reasoning and precepts of “the wisest man of his generation” soon found their way into the Constitutions of the 13 original states, into the Federal Constitution, and finally into all of the Constitutions of the 48 States. Section 2 of the Virginia Bill of Rights is now the first paragraph of the Georgia Constitution, as follows:

All government, of right, originates with the people, is founded upon their will only, and is instituted solely for the good of the whole. Public officers are the trustees and servants of the people, and at all times amenable to them.

The theory that the people are sovereign, first applied in the Virginia Bill of Rights and Constitution is now the basic theory of the Constitutions of 59 nations constituting 71% of the total number of nations having Constitutions, and comprehending 80% of the world’s total population.(2) The reason why there is not almost universal freedom in the world is due preponderantly to servile and depraved tribunals that are expressly permitted by or have grown up under such constitutions, which hold that constitutions do not mean what they say, but that they mean that which rulers wish them to mean.

In fear of the depravity of man, “the wisest man of his generation” not only wrote into his Bill of Rights and Constitution the basic concept that rulers are the “trustees and servants” of the people whose only powers are those to be found in constitutions and laws made pursuant to such constitutions (which in a true sense constitute the power-of-attorney of rulers), but he emancipated the judiciary and raised it to the dignity of constitutional status as a co-ordinate branch of government, and placed it on guard against the assault of pwoer. Never before in history had such a thing been done. Never before in history had limits been placed upon both the executive and legislative powers. Montesquieu had said:(3)

Of the three powers . . . , the judiciary is in some measure next to nothing.

All that John Locke could envision as a bulwark against usurpation of power by the executive and legislative was a pitiful “appeal to Heaven.”(4) The Virginia Constitution and Bill of Rights brought the tribunal to earth and made it a bulwark where needed.

Five years before the Constitutional Convention, Supreme Court Justice Wythe of Virginia fearlessly ruled that nothing promulgated in Virginia as law that was not law, should have the effect of law, saying:(5)

If the whole legislature . . . should attempt to overlap the bounds prescribed to them by the people, I, in administering the public justice of the country, will meet the united powers at my seat in this tribunal; and pointing to the Constitution will say to them here is the limit of your authority, and hither shall you go no further.

The absolute essential to republican government that sovereignty rest in the people, and that rulers have only such powers as are conferred on them by the people, first set forth in the Virginia Bill of Rights, found its way in substance into the preamble to the Federal Constitution. In order to make explicit that which was said to be “implicit” and hence “unnecessary,” the people on the farms and frontiers of America demanded the immediate addition to the Constitution of the Bill of Rights. As to no provisions of the Bill of Rights were they quite so insistent as on those now embodied in paragraphs 9 and 10, which are:

The principles stated in those paragraphs were set forth in “the last clause of the Fourth Resolution” as the same was debated in the House of Representatives in early June 1789, as follows:(6)

The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the Constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.

With respect to them Madison said on June 8th:(7)

The prediction of Madison as to the part “independent tribunals of justice” would play, as “guardians” of the rights of people, after the adoption of a Bill of Rights confirming the servitude of rulers, is best illustrated by contrast. A page from French history may be relevant here.

In another place the writer has attempted to show the influence of the Virginia and other state Bills of Rights and Constitutions on French thought before 1789.(8) French editions of these American Constitutions were published in Paris as fast as they came from the separate state conventions.(9)

The effect was electrifying. They were the proximate cause of the French Revolution. France took America for her example during the first years of her Revolution. However, while she was willing to embrace the creeds of liberty, she was unwilling to anchor them with barricades and institutions of liberty. History taught her nothing. She began to listen to philosophers, and “experts” who had learned in schools of thought rather than schools of experience. Turgot ridiculed the separation of powers that was first brought to perfection in the Virginia Bill of Rights and Constitution. Like many modern theorists, he pronounced the separation of powers as of no use “in Republics founded upon equality of all citizens . . . as if establishing different orders of men were not a source of divisions and disputes.”(10)

The philosophy of Rousseau, Mably and Turgot soon took over and the American influence vanished. The judicial was made a tool of the legislative. It was made “next to nothing,” as Montesquieu had envisioned it. Locke’s “appeal to Heaven” was all that was left.

On March 15, 1792, LaFayette wrote George Washington from Paris:(11)

How far this Constitution of ours insures a good government has not been as yet fairly experienced . . . I wish we had . . . a more independent set of judges . . . You see, my dear General, I am not enthusiastic for every part of our Constitution. . . .

Remembering the foregoing statement, now let us see the results of a French Constitution without separation of powers anchored by an “independent set of judges.”

Turgot, Necker and LaFayette were soon replaced by Barnave, Condorcet and Mirabeau. The more liberal Girondins drove them out. They in turn passed each other on the road—the road to the guillotine. The last of the Girondins, on the way to the knife were passed by the liberal Jacobins. The most liberal of the Jacobins soon began to devour the reactionaries of their own school. Blood foamed in the gutters of Paris, and curdled in the veins of men. Servile tribunals performed their historic functions as the yes-men of tyranny.

Camille Desmoulins, on his way to the guillotine, cried out to the blood-thirsty mob: “Do you remember me? I’m Camille. It was I who started this. It was I who plucked the first green badge of revolution!” In vain! He had helped to give France a government of flesh. Flesh feeds flesh to knives and halters through the instrumentality of servile judiciaries that are “next to nothing.” He and Danton paid the price.

Then came Marat, Robespierre, Billaud and Tallieu. Robespierre’s neck at last warmed the knife in July, 1794.

From the biographical works of France we learn the fate of some of those heroes whose love of liberty induced them to come to America to fight our battles and turn the tide for us in the darkest hours of the American Revolution.

LaFayette went out of the night to become a prisoner of state in a dungeon at Olmütz. The Duke de Lauzun went to the scaffold. So did Victor de Broglie. Beauharnais’s head fell in unison with Robespierre’s. Custine, the brave hero of Yorktown, went to the scaffold. Arthur Dillon went to the guillotine. So did Count D’Estaing, that intrepid “Storm over Savannah” and constitutionalist of 1789.(12)

Out of the night with LaFayette, to become men without a country, went the Marquis de Bouillé, Damas Crux, Duportail, Armand de Castries, Charles de Lameth, as well as Alexandre and Theodore de Lameth. Langlois du Bouchet went too. So did Mirabeau, brother of the great orator. So did Montesquieu, grandson of the political philosopher who had envisioned constitutional judiciaries that were “next to nothing.” Scores of other French veterans of the American Revolution left France by way of its frontiers or by way of the guillotine or halter. Poor old Tom Paine, the “firebrand” of the American Revolution, became a citizen of France and then her prisoner. Never did a government find so many “experts.” Never (until modern Russia) did one become so “efficient.”

“I wish we had . . . a more independent set of Judges”! LaFayette bemoaned to the man he loved above all others on earth—the man whose considered judgment as our first president was that a wise, virtuous and independent judiciary is “the chief pillar upon which our national government must rest.”(13)

For want of that “chief pillar,” for want of the separation of powers making the judiciary a pillar rather than a tool, the life blood of the innocent, the brave and the good of every race has discolored all the annals of time. For lack of such a “pillar” upon which to build and anchor governments, life, liberty and happiness ebb and flow with tides and perish in swells. “The wisest man of his generation” learned a truth others had learned imperfectly and wrote it into two constitution. When earthquakes, made by God or men, shake that “pillar,” constitutions fall—then in due time come dictators. Dictators must first dictate to servile tribunals before they can dictate to people.

From history’s bitter fruits “the wisest man of his generation” catalogued many little fox-holes of liberty that had been built and bought with the blood of martyrs to protect man from the pernicious effects of the theory that sovereignty rests in rulers and that the people may only enjoy liberties through the grace of rulers. Those little rights, wrapped in a package with a gun, were vouchsafed to posterity as “fundamentals” so that no American ruler should ever dare to rob the people of their liberties even though the emancipated guardians of constitutions should be ignorant or depraved Protean judges who should regard their official freedom and constitutional dignity as something designed merely to make judges fat, rather than as something to keep men free.

Section 13 of the Virginia Bill of Rights guaranteed to the people the right to keep and bear arms and to have a well-regulated militia “composed of the body of the people trained to arms,” so that upon a failure of all checks and balances and the final degradation of the judiciary, the people might yet have some pitiful weapons with which to guard their liberties.

The proclamation of the Governor in question violated all fundamental principles of American Constitutional government. It violated or contravened the following specific provisions of the Georgia Bill of Rights and Constitution:

The foregoing provisions typify scores of like provisions in the Constitutions of all American States.

In addition to the foregoing specific provisions of the Georgia Constitution, the proclamation of the Governor, the acts of “X” and the Arbitration and Assessment Board were in violation of many other provisions, and several provisions of the Federal Constitution, for example:

Article IV, Section 4, which provides that the United States shall “guarantee to every State in this Union a Republican form of government,” and the equal protection and due process clauses of the 14th Amendment.

There is not one word, phrase or sentence in the Constitution of Georgia or in the Constitution of the United States, that authorizes a chief executive to make or judge law. He may only execute laws in a government of laws. In plain, unambigous language, our Constitutions command government of laws. No generation of the Anglo-Saxon race had ever suffered more from a government of men than those who made them. Beyond the protective bulwarks of Constitutions and laws enacted pursuant thereto lies only usurpation, despotism and tyranny.

“The wisest man of his generation” knew history. The political writings of Machiavel, Junius, DeLohme, Harrington, John Locke, Montesquieu, Voltaire, Rousseau and many others were as ABC’s to him but little heed did he pay them. He went to original sources to learn his lessons. Gout confined him to his study for long periods during which he learned from the history and experience of man, that republics don’t survive where self-restraint is the only check upon the servants of republics. Thus the infirmity of one man became a blessing to the world. He learned most from the writings of those who had suffered most from the depravity of man. The Man of Galilee, John Lilburne, Roger Williams, Sir Henry Vane, Algernon Sidney, and William Penn taught him much.

From the fall of Adam; the “glory that was Greece and the grandeur that was Rome”; the Sermon on the Mount; the Lord’s Prayer; the Crucifixion; the scourged Lilburne at the cart’s tail; Vane, Russell and Sidney on the block; the broken, maimed and lifeless bodies, and the plundered estates along the trails of servile tribunals, many of them in the colonies equal to any England had ever known, except in notoriety, he learned that DEPRAVITY IS THE NATURAL STATE OF MAN.

Lilburne taught him from his dungeon, Algernon Sidney taught him in his Discourses on Government. He taught him again when he helped William Penn write his Frame of Government for Pennsylvania in 1682. A few months before Sidney’s head was to fall victim to the depravity of man, he spent many days in Penn’s home working on the Frame. That Frame of Government reasserts the eternal (yet forgotten) truth that the depravity of man is the sole reason for the existence of any constitution or any government; that angels need no constitutions or laws, and that rulers, ever eager to enjoy “forbidden fruit” must be harnessed and chained by constitutions. We quote from it:(14)

(Emphasis by William Penn.)

Those who have contributed most to establish the institutions of freedom on firm foundations—those who have levied most from the vile dens of arbitrary pwoer and paid it into the common storehouses of human liberty and dignity in all ages, have been deeply religious men—men who looked upon religion as a way of life instead of a creed—men who were willing to suffer and die that their children might be free.

“The wisest man of his generation” lives on in the parchment of Constitutions of the Federal Government, all of the American States and most of the governments of the world but he has gone from the hearts of men. Look for his name in the indexes of modern works and textbooks, on history and government. You will seldom find it. As the index finger follows the indexes through “ma” it usually finds no “son” but often finds “rx.” We are teaching our children the philosophy of Karl Marx. “Wisdom and virtue,” is no longer “carefully propagated by a virtuous education of youth.” Our public schools may not now teach to our children the philosophy of the Galilean. We have tried God before a liberal tribunal and sentenced him to Siberia. We have turned George Mason’s face to the wall. We have stricken from the pages of history his contributions to the liberty and dignity of men. We now possess the historical symptoms of internal decay.

A few members of the Supreme Court of the United States floundered miserably in their opinions in the Steel Cases. Without detracting from the profound opinions of two or more of the majority, that will be read and cherished as long as man remains free, we should never forget that all the majority did was to make the pronouncement that the Constitution means what it says. The wretched efforts of the minority to prove that the Constitution does not mean what it says, gives fresh proof of the truth eternal—

Paragraph 1, (quoted above).

Paragraph 3, which is the due process clause.

Paragraph 4, which opens the doors to the courts and locks them ajar so that the people may go in there and not be forced to obey the decrees of an irregular tribunal.

Paragraph 16, which forbids unreasonable seizures.

Paragraph 19, which renders the civil authority established by law superior to executive tools.

Paragraph 22, which authorizes the people to keep and bear arms to be used to defend themselves against tyrants at home or from abroad.

Paragraph 23, which separates the legislative, judicial and executive powers and vests them in different branches of government, and which is taken from Section 5 of the Virginia Bill of Rights and from specific provisions of the Virginia Constitution.

Paragraph 1, which provides that property shall not be taken for public purposes without full and adequate compensation being first paid.

Paragraph 2, which commands the Georgia judiciary to declare acts in violation of the Constitution “void.”

Paragraph 1, which provides that the people and the people alone “have the inherent, sole and exclusive right of regulating their internal government and the police thereof, and of altering and abolishing their Constitution whenever it may be necessary to their safety and happiness.”

Paragraph 1, which vests the legislative power of the State in a General Assembly consisting of a Senate and House of Representatives.

Paragraph 7, which provides that before anything may become a law it shall be read three times and on three separate days in each House “unless in cases of actual invasion, or insurrections.” (It was nowhere stated in the question that the Governor read the proclamation three times on three separate days in each of the “Houses”).

Paragraph 8, which provides that nothing shall be law which refers to more than one subject matter “or contains matter different from what is expressed in the title thereof.” (The Governor’s proclamation had no title.)

Paragraph 9, which provides that public money may not be used except as appropriated by the General Assembly.

Paragraph 10, which provides that all bills for raising and appropriating revenue shall originate in the House of Representatives.

Paragraph 11, which provides that no money shall be drawn from the treasury except by appropriations made by law.

Paragraph 12, which provides that no bill or resolution appropriating money shall become a law unless, upon its passage, “the yeas and nays, in each House, are recorded.”

Paragraph 13, which provides that nothing “intended to have the effect of law” shall pass as law unless signed by the President of the Senate and the Speaker of the House of Representatives.

Paragraph 14, which provides that nothing shall become law “unless it shall receive a majority of the votes of all the members elected to each House of the General Assembly, and it shall, in every instance, so appear in the Journal.”

Paragraph 16, which provides that no law may be amended unless it distinctly describes the law to be amended as well as the alteration to be made.

Paragraph 1, which vests only executive power in the Governor.

Paragraph 2, which empowers the General Assembly “to prescribe the duties, authority, and salaries of the executive officer, . . .”

Paragraph 1, which vests all “the judicial powers of this State” in the courts of this State, leaving none for any other tribunal.